Committee (5th Day)
Relevant document: 7th and 9th Reports from the Delegated Powers Committee, 3rd Report from the Joint Committee on Human Rights.
With the leave of the Deputy Chairman of Committees, I hope it might be helpful to everyone taking part in this Grand Committee if I draw attention to the revised calendar for this Bill, published with today’s edition of forthcoming business. The calendar shows that the usual channels now hope that we will complete the Committee stage of the Bill in 11 sessions in total—that is, seven more sessions including today. It also sets out the clauses that we hope to cover each day so that people who want to take part in a particular part of the Bill can plan their diaries. The calendar is not binding but it has support across this Committee. We hope we can complete our work here on 18 November. Can I encourage everyone here to try to reach the target today, the group led by Amendment 81, so that we can complete the stage in good order?
My Lords, perhaps I might make a point, as a Cross-Bencher, about the amount of time that may be allowed on Report. It is a matter of some concern that this Bill has been committed to a Grand Committee when a number of people who are concerned about the Care Bill would have liked to be here. Those people may well wish to speak on Report when they would otherwise have spoken in Grand Committee. Consequently, we may find that Report lasts a bit longer than the Government would choose. Therefore, it would be helpful if the usual channels took that on board in arranging the number of days appropriate for Report.
65: Clause 15, page 15, line 10, after “provisions” insert “and sibling placement arrangements”
My Lords, I will not dwell on this because it rehearses a theme that we spent a great length of time on in discussing Part 1 of the Bill—that is, the importance for children, when their families break up or they are taken into care, of keeping in contact with their birth family as appropriate, particularly with their siblings. The Minister was not the Minister discussing the Bill with us when we talked about Part 1. Therefore, he did not hear the strength of feeling across the Committee on this issue, which was such that the Minister—the noble Lord, Lord Nash—acknowledged it and agreed to take the issue of sibling contact back and look at it. So I hope, when the Minister sums up, that I will not need to rehearse the arguments; I hope he will take that on trust and, similarly, look at it with his colleague, the Minister in the Department for Education, and come back on Report.
The amendment is, however, different from the amendment that we talked about in relation to Part 1. It would require the court, at the stage of considering permanence for a child, to pay particular attention to any siblings and where they are, and to continued contact between siblings when making or approving the permanence plan for a child through a care order. Amendment 65 would therefore insert “and sibling placement arrangements” after “provisions”. It is very important that this issue is considered not only by social workers and professionals, as we discussed when we looked at the amendment to Part 1, but particularly at the court stage. Clause 15, as it is worded, does not include arrangements for siblings to be placed together where possible. It does not include anything that requires the court specifically to consider the arrangements for brothers and sisters.
It is essential that this is considered at the court stage because after that, while there are a number of possible opportunities for detailed arrangements in permanence plans to be considered, there are none really to go back and address this issue. Independent reviewing officers, for example, do not have the same authority as the courts to scrutinise care plans and they cannot take the matter back to court directly if they consider that the care plan is deficient in one way or another. They can only refer the matter to a CAFCASS officer who can then maybe bring a claim on behalf of the child if they consider that there are grounds for judicial review or a free-standing claim under the Human Rights Act. In practice, as I am sure Members can appreciate, that power is rarely used. Therefore, it is very important to get these issues about continued sibling contact right in at the front end when the courts are asked to scrutinise the arrangements for permanence when thinking about a care plan.
I will not rehearse all the arguments as to why that is important. I suspect the Minister may appreciate them. I will, though, rehearse one statistic that we used in the previous debate. I hope that the Minister will not say that the courts will do this anyway. The figures that we looked at then suggested that some 63% of children who go into care and have siblings who go into care lose contact with those siblings. Clearly, at various points in the process—in court, through social workers, through the placements—contact is being broken for the vast majority of children who go into care as part of a sibling group. I hope that the Minister will be prepared to look at this and respond positively to it. I beg to move.
My Lords, I support the noble Baroness in this amendment. At his request, I will also speak to the amendment of the noble and learned Lord, Lord Mackay of Clashfern. Is that separate? It is separate, so I will speak entirely to this amendment.
At the adoption stage, Part 1 of the Bill, a number of us spoke about the importance of sibling contact. I made the point—I make no apology for making it again to a different Minister—that the Select Committee on Adoption Legislation took informal evidence from a considerable number of children. One of the points made both by the group who were adopted and the group in care concerned the enormous sorrow they felt at losing contact with the siblings they knew. Very sensibly, one girl said, “I am not concerned about the siblings born after I left the family but I am very worried about my brothers and sisters”. Another child was almost in tears as he was so worried about his younger brother, not knowing what was happening to him and nobody being able to tell him. He said he woke up at night worrying about his brother. That is not acceptable. Therefore, it is important at each stage that those in charge of children or in charge of making arrangements and connections with children have the siblings in mind. The judge may well say that the social workers have given him all sorts of good reasons why they are not going to meet, but it is important that the judge asks. There is no requirement on the judge, or indeed the magistrates in the family proceedings court, to ask that question unless it is in legislation.
My Lords, I know that David Norgrove was very concerned that judges spent quite a considerable time reviewing care plans and that might well delay looking at the future of children. However, I cannot see why this aspect should not be looked at. When the judge is looking at the placement of the child before him, he must look at the whole family, the parental position and what is going to happen to the siblings. Although I understand absolutely why David Norgrove felt that the local authority should be the one looking sensibly at the care plans, I do not at all see why the court should not look at the sibling placement.
My Lords, I am very grateful to all noble Lords who have contributed to this debate. The noble Baroness, in introducing the amendment, referred to the strength of feeling expressed when Part 1 of the Bill was discussed and how important it is that the court is able, where appropriate, to consider the arrangements that the local authority might make for a child to live with his or her siblings. My noble friend and I will consider the points made both today and earlier in the Bill.
As was discussed in the other place, the purpose of Clause 15 is to focus the court, in its consideration of the local authority care plan, on those provisions which set out the long-term planning for the upbringing of the child; for example, whether the child is to live with a parent or other family member, to be placed in foster care or to be adopted—the permanence provisions. The court is not required to consider the remainder of the plan. The clause is based on the findings in the family justice review that, driven partly by concerns over the quality of local authority social work, courts can spend a long time scrutinising the details of local authority care plans for children before making care orders. In many cases, court scrutiny goes beyond what is needed to determine whether a care order is in the best interests of a child. This can lead to unnecessary delays and contribute to the lengthy duration of care cases.
As was also highlighted in the other place, details of care plans are not set in stone and often change over time in response to a child’s changing needs and circumstances. In 62% of cases in a recent study, the care plan scrutinised by the court was not carried out, due to changing circumstances. Given this likelihood of change, the local authority, rather than the court, is better placed to consider the detail of the care plan.
I appreciate the concerns expressed by noble Lords about sibling placement, following the debate in the other place. I want to clarify that if the permanence provisions of a particular plan deal with arrangements relating to a child’s sibling—for example, if the plan is for the child to be adopted along with his sibling—the court will be required to consider those arrangements as part of the permanence provision. I will look at the statistics cited by the noble Baroness, Lady Hughes, about loss of contact and, in addition, I make the point that she anticipated: there is nothing in the clause that prevents the court looking at any other aspect of the plan it considers necessary to make the order.
I understand the point made by the noble and learned Baroness, Lady Butler-Sloss, with her vast experience and from the evidence heard by her committee, about the grief and stress that can be caused to siblings by being parted. It is a matter that needs to be looked at. I re-emphasise that nothing in the clause affects the duty of the local authority, when deciding the most appropriate placement for the child, to ensure, as far as reasonably practicable in each case, that the placement enables the child to live with any sibling who is also being looked after by the local authority.
As has been pointed out, concern has been expressed and some statistics have been advanced for us to ponder. We will look at this again in those terms and in the context in which David Norgrove made these recommendations. There is a danger that if we have too many belts and braces in the process, we will lose the very advantages of speed that we are trying to bring in and which are also in the best interests of the child. I hear what the Committee has said and my colleague and I will consider that between now and Report. In those circumstances, I would be grateful if the noble Lady would withdraw her amendment.
I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for their important contributions. I thank the Minister for that response; I am grateful that he will look at this issue again. However, I have a couple of comments that I hope he will take with him.
The Minister said that Clause 15 is about the court looking at the permanence provisions. Many people would argue that such is the importance to young people of continued contact between siblings—not necessarily joint placements, which may not be possible, but particularly if they are not possible, then arrangements for them to keep in contact with each other—that when it comes to permanence provisions it has a unique relevance to the stability of the placement, the well-being of the child and the security that the child feels. It means that the child in that placement, as the noble and learned Baroness graphically conveyed from her conversations with young people, does not have that placement clouded by anxiety and concern about where brothers and sisters are. This is a unique detail in the whole panoply of details that have to be considered in permanence placements.
I say this with great respect for the Minister but, frankly, I do not accept the argument that to include the provision to require judges to ask the question—that is all that is being asked here—would delay proceedings. That sounds like a very official argument, and it is a weak one. In the amendment we simply suggest, as the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, said, that the judge should ask, “Does this child have any siblings? If so, where are they, what are the plans, are they going to be placed together and, if not, what contact is being arranged for them?”. If the judge started the consideration with those simple questions, I do not think that that would precipitate any delay at all but it would elevate the issue to an importance that would require the professionals dealing with the detail then to have to consider the detail and, if necessary, reply to the court about what arrangements they had made for sibling conduct. With that clarification of what we are seeking here, I beg leave to withdraw the amendment.
Amendment 65 withdrawn.
Clause 15 agreed.
Clauses 16 and 17 agreed.
Clause 18: Repeal of uncommenced provisions of Part 2 of the Family Law Act 1996
Debate on whether Clause 18 should stand part of the Bill.
My Lords, with the leave of the Committee, I shall speak in place of the noble and learned Lord, Lord Mackay of Clashfern, at his specific request. He was here on Monday, but he was just not reached and is unable to be here today. The noble and learned Lord is making a plea for the Family Law Act 1996. As Lord Chancellor then, he was responsible for its introduction in the House of Lords. A considerable part of that Act has not been commenced, but Governments since then have left it on the statute book.
Clause 18 of the present Bill repeals the whole of that which remains of the 1996 Act. The noble and learned Lord has said that since he was involved he felt diffident about raising the issue, but then he learnt that at least some of those concerned with family law did not know that the Act was to be repealed. He felt that he had a responsibility towards those who had supported him to point to this development. Perhaps the Committee will forgive me if I read the noble and learned Lord’s principal concern. He has written that,
“with no-fault divorce which I advanced on the basis that to require a spouse seeking divorce to make allegations about the other spouse which would not require to be proved was not conducive to the vital task of promoting good relations between them for the sake of the children”.
In other words, “no-fault divorce” means that the parties do not rake up unpleasant things about each other which can only be bad for the children. He adds:
“So far as I know its retention on the statute book has done no harm”.
I would add that Part 1 of the Family Law Act 1996 sets out what I do not believe we get anywhere else; that is, the principles of Parts 2 and 3 of that Act. It states that,
“the institution of marriage is to be supported … that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage”—
which is admirable—
“that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end … with minimum distress to the parties and to the children affected”.
It goes on like that. It sets out in about one page the general principles of good behaviour between parties to a marriage that has broken down. It is sad that there are issues of reflection and consideration before the divorce.
One might say that all that is old hat. Marriages go on, thank goodness. The majority of people who live together do not get married but a lot do. To have these good principles on the statute book has done no harm and will do no harm. It will at least make available to people the desirable end to those marriages that have broken down, and make some effort to remind them that they should try to minimise distress to everyone, particularly their children. I might add grandparents to that. It is sad that it is apparently necessary, under Clause 18, for this Act to be repealed, which is the purpose behind the noble and learned Lord, Lord Mackay of Clashfern, opposing that it should stand part of the Bill.
My Lords, one of the perils of being a Minister in this House is that the continuity that is one of its merits means that changes to decades-old legislation may mean that we find the author still with us, alive and kicking. We saw something similar on Monday when noble and learned Lords wanted a rematch of decisions made by Law Lords some decades ago. However, that does not mean I take lightly the point made by the noble and learned Lord, Lord Mackay. After our Monday sitting, I had a long conversation with Sir James Munby on Tuesday. I mentioned the point raised by the noble and learned Lord. Sir James was somewhat wistful about the ambitions of the noble and learned Lord to bring in the concept of “no-fault divorce”, which had not progressed as much as the authors of the Bill at that time had intended.
I have listened with great care to the points made on behalf of the noble and learned Lord, Lord Mackay, by the noble and learned Baroness, Lady Butler-Sloss. As I have said, I have the utmost respect for the position of supporting the principle of “no-fault divorce”. I acknowledge the expertise of the noble and learned Lord in this area and I know that when he introduced the Family Law Bill in this House in 1995, it was a Bill very close to his heart.
I fully understand that the provisions of Part 2 were intended to save saveable marriages and reduce distress and conflict when it was inevitable that a marriage would need to be brought to an end. While Part 2 retained as the ground for divorce the irretrievable breakdown of the marriage, it would, if implemented, have removed the need to establish irretrievable breakdown through one or more facts. I understand why proponents of no-fault divorce believe that the approach in Part 2 would have helped to reduce conflict and acrimony.
However, there are two separate issues here. The first concerns the principle of no-fault divorce in Part 2, and the second concerns the information meeting and other provisions of Part 2 which were an integral part of that policy. The Government in 2001 concluded that the provisions were unworkable, would not achieve the objectives of saving saveable marriages and reducing distress and conflict, and should be repealed. It is that second issue that led us to include Clause 18 in the Bill.
The decision to repeal Part 2 was made in principle long ago on the basis of extensive academic research by the University of Newcastle. The research looked at six models of information meeting that a party to a marriage would have been required to attend as the key first step in initiating a divorce. Part 2 is built around that initial mandatory information meeting. The research concluded that none of the six models of information meeting tested was good enough for implementation nationally. For most people, the meetings came too late to save marriages and tended to cause parties who were uncertain about their marriages to be more inclined towards divorce. While people valued the provision of information, the meetings were too inflexible, providing general information about both marriage-saving and the divorce process. People wanted information tailored to their individual circumstances and needs. In addition, in the majority of cases, only the person petitioning for divorce attended the meeting. Marriage counselling and conciliatory divorce all depend on the willing involvement of both parties.
Repeal of Part 2 has been awaiting a suitable legislative opportunity. The Children and Families Bill now provides that opportunity. Repeal was part of the draft Bill published for pre-legislative scrutiny in September 2012. None of the written responses opposed repeal of Part 2.
The Government have introduced separate measures in Clause 10 to make it compulsory for an applicant in certain family proceedings first to attend a family mediation, information and assessment meeting—I realise we will be having further debates about that on Report. That provision has some similarities with the information meeting provision for divorce in Part 2 and will, we intend, address disputes about children and finances.
Mediators who conduct the MIAM will check with the parties whether they wish to save their relationship, as well as discuss ways to resolve a relevant family dispute with the minimum of distress, including, in particular, arrangements for any children. However, Clause 10 addresses disputes between both cohabiting and divorcing couples.
Repeal of Part 2 is a long-standing commitment to Parliament. There is no prospect of Part 2 being implemented. Therefore Clause 18 should stand part of the Bill.
Clause 18 agreed.
Amendment 65A not moved.
Clause 19: Local authority functions: supporting and involving children and young people
65B: Clause 19, page 18, line 30, at end insert—
“( ) whether the child is a disabled person for the purposes of the Equality Act 2010 and, if so, the obligations falling on the local authority as a result including any obligations under section 20 of that Act (namely the duty to make reasonable adjustments).”
My Lords, having laboured, not without difficulty, up the lower slopes of this major and compendious piece of legislation, we come at last to a major plateau where we can either take our rest or chafe at the impediment it still constitutes on the way to the summit.
I refer to Part 3, on special educational needs. I describe it as a major plateau because more than 200 amendments to Part 3 have been tabled for debate in 35 groups. I fear that I am responsible for more than 20 of them. At the current rate of progress, that should take us a good five days. Perhaps that is not so bad; four were allowed for in the Committee calendar. I certainly do not intend to hold up progress any more than necessary. I just observe, however, that the fact that there are so many amendments testifies to concern that the Bill is not yet in a fit state to go on to the statute book if it is properly to serve the needs of the children and young people whose lives and futures it deals with; to disappointment that the Government have not been more responsive to concerns raised so far; and to the hope that we will see more movement as the Bill passes through this House, so that its passage into law does not need to be delayed beyond the timescale that the Government have in mind.
Let us see whether we can get four amendments out of the way without more ado. I am moving Amendment 65B and speaking to Amendments 87, 90A and 105. Amendments 65B, 67 and 105 would ensure that the Bill covered children and young people who have a disability under the Equality Act 2010 but do not have a special educational need. The language varies slightly, and this is just a random selection of places in the Bill where children and young people with a disability but not a special educational need could be inserted. Clause 19 deals with local authorities’ role in supporting and involving children and young people, Clause 26 deals with joint commissioning arrangements and Clause 30 concerns the local offer. In that sense, they are probing amendments to gain more understanding of the Government’s reasons for introducing a Bill that deals with children with special educational needs but not with children and young people with a disability who do not have special educational needs. Amendments 65B and 90A also ensure that the principal obligation owed by local authorities by virtue of the Equality Act to children and young people with disabilities but not a special educational need—the duty to make reasonable adjustments —is covered. Amendment 90A, in particular, is designed to ensure that the reasonable adjustment duty is firmly integrated into the planning of education, health and social care services.
Part 3 applies to children and young people with special educational needs. Children and young people with special educational needs are defined in the Bill as those who have a significantly greater difficulty in learning than the majority of others of the same age or a disability which prevents them from making use of the educational facilities usually available in that area. Although many disabled children and young people are covered by that definition of SEN, some are not. For example, the following children would be disabled but have no special educational need: a child with a physical disability whose school was completely accessible to them or a child with a serious health condition that does not impact on their learning or ability to access the school premises. That group could include those with epilepsy, asthma, diabetes or a motor or musculoskeletal disorder, all of which might require medical treatment or therapies to be administered in school, possibly alongside a social care package at home, but would not require any educational interventions.
Research from the universities of Bath and Bristol, commissioned by the DfE itself, estimated that around 25% of disabled children do not also have special educational needs. The impact of this omission is that the Bill will require local authorities and clinical commissioning groups to plan jointly under Clause 26 and review under Clause 27 provision for the 75% of disabled children and young people with SEN but not for the 25% of disabled children without SEN. Under Clause 30, local authorities must set out a local offer of services available for the 75% of disabled children and young people with SEN but not for the 25% without SEN. The Bill thus creates a dividing line between children with SEN and disabled children without SEN and, as a result, certain things must be done for one group and not the other.
As well as being unfair, leaving disability out of Clauses 26, 27 and 30 does not make sense on a practical level. The label SEN is simply not used by social care or health commissioners. For example, under the Children Act 1989, social care services are delivered to disabled children, not children with SEN. Locally, the Bill as currently drafted will lead to confusing arguments about whether a service is for children with SEN or only for disabled children. There would be no additional cost to including disabled children without SEN in the duty to review services or jointly commission services. It could even end up saving money by creating a more streamlined system.
There are three things wrong with leaving disability out. First, as we have seen, in the new world of integrated education, health and social care, it will lead to confusion and unnecessary boundary disputes. Secondly, it misses a golden opportunity to rationalise the legislation on SEN and disability. SEN legislation is a river fed by two tributaries—SEN legislation itself and disability discrimination legislation. These overlap to a significant extent—some 75% as the universities of Bath and Bristol have shown—but not entirely. This Bill would be a perfect opportunity to bring the two streams together into a single, more coherent framework. Thirdly, leaving disability out goes back on what was promised in the Green Paper on SEN and disability.
This promised a new deal for children with SEN and disabled children. Local authorities would be required to set out a local offer of services available to support children who have SEN or who are disabled. There would be stronger strategic planning and commissioning duties to support children who have SEN or who are disabled. The Bill sets out stronger strategic planning and commissioning duties but, importantly, it does not include disabled children in these clauses, as was promised. I understand that the Government believe that disability is adequately covered in the Bill as a result of Clause 20 but the references to disability there are all to a disability that calls for special educational provision to be made. I fear that does not really bring in those with disabilities but without SEN.
Finally, to hammer the last nail in, it should be noted that the Education Select Committee, in its pre-legislative scrutiny, was in favour of including disabled children without SEN. It said:
“The evidence makes a strong case to include disabled children, with or without SEN, in the scope of entitlement to integrated provision … We recommend this”.
I hope very much that the Minister will review the legislation with a view to bringing in this important category of children and young people. and thereby making the legislative framework a lot more coherent and practical. I beg to move.
My Lords, I shall speak to Amendments 67 and 68. The current test in the Bill for whether someone has special educational needs is whether they have a learning difficulty or a disability that would require special educational provision, defined in Clause 21 as,
“educational or training provision that is additional to, or different from, that made generally for others of the same age”.
Amendment 68 would mean that the test of whether someone has a special educational need would be based not on whether they need special educational provision but, instead, on whether provision has to be made for them to access education. What is the difference? Someone could have barriers to their accessing education which do not require,
“educational or training provision that is additional to, or different from, that made generally”.
For example, simply being unable to access a class, due to stairs, for a wheelchair user, is nothing to do with education or training provision but instead about their ability to access education.
Why do I think that this amendment is important? When the Government originally published their proposals for the Bill, when Sarah Teather was the Children’s Minister, the focus was very much on special education and disability needs. The Government have said that this does not prevent the provisions being applied to disabled children when there are barriers to them accessing education. Clause 20 includes disabled children as people who have special educational needs. However, clarity is needed about what might constitute a barrier to education. Are we just talking about things such as additional support—Braille, and so on—or do we include the simple ability to get to a class or get through a lesson due to a spinal problem? This amendment is a probing one to clarify that educational or training provision includes the ability to access education and does not apply only to the actual classroom or teaching session.
I move on to Amendments 220, 221 and 222. Your Lordships all get letters, briefings and, in some cases, speaking notes from a whole host of organisations. I am always amazed at the fortitude of those organisations in campaigning, rightly, for what they really believe in. But sometimes, in the barrage of the correspondence, we get personal letters or comments from individuals who are not part of a gigantic campaign—they are individual snapshots of how that person feels. One such letter came to me some time ago, about allergies. I remember in my own school children with nut allergies. Knowing nothing about it, I did a bit of exploration and realised that this was very serious. If they had an allergy, we needed to make sure that their photographs were pinned up by the canteen and that the Epipen that they needed to save their lives was readily available.
I want to read you this letter from a child, whose name I shall not mention, because it shows how important it is that no child with a medical condition should be prevented from having full-time school provision. The letter says:
“Since the age of 9 months I have had to use the EPI-PEN 13 times. Regardless of all my allergies I have always had a positive attitude to life, and that’s how my mum has always taught me to help me learn how to live in the bigger wider world and my dad has always taught me to smile. Because of this I have been able to live my life to the fullest and we have travelled and had fun whilst doing many exciting things. Nursery, primary and my first year of high school were great and memorable years and the schools have always managed with my allergies.
Now we zoom into 2013 and let’s see what’s going on now. We’ve moved in a new area and my mum applied for schools in our area as they were more nearer to home, we didn’t get the schools we applied for but in the meantime I was offered a place in another school straight away. But all the staff in my new school are worried about my allergies and they aren’t giving me a starting date, it’s been 8 weeks I’ve been out of school and still don’t know when I’m starting!”.
I read that letter as an example of how a medical condition, which the school should cater for, is preventing that poor little girl being able to get to school.
I say straightaway that some schools provide significant support to children with health conditions, but it is obvious that other schools do not provide any support at all. That means that there are inconsistencies in how children are supported, depending on the school that they attend. Those inconsistencies have been highlighted in a report by the charity Epilepsy Action, which commissioned research specifically for this Bill about children and young people with epilepsy who are either currently in full-time education or who have left full-time education in the past 10 years. I will not read all the figures, but the survey found that only 14% of those currently in full-time education said that their education establishment had a written plan for their needs.
My point is simple: whether you need injections for diabetes, tablets for cystic fibrosis or support with epilepsy, that should not be a barrier to full-time education. I have always thought that the Bill is progressive. I do not think that anybody would say, “Down with the Bill!”; I think that everyone feels that the Bill is a real way forward. What we are about is making it better. I was delighted to see the Minister’s amendment—I thank him for it—which means that, for the first time, there will be a duty of care, there will be statutory guidance and we will, I hope, circulate good practice. I spoke this week to Ofsted, which is keen to be involved to ensure that that good practice and statutory guidance are delivered. The real issue will be the quality and substance of the statutory guidance, but I hope that, once it has been issued, there will be no more letters from little girls saying that they have been barred from or delayed in starting school because of a simple condition that the school could deal with.
My Lords, I applaud what has just been said, as this pins down carefully and cleverly just what you are covered for or not covered for, about which there is clearly a good deal of confusion. I have a lot of sympathy with almost all the amendments in this considerable group. I will particularly address two and refer to more as we go along. I want to stress the role of the Equality and Human Rights Commission. I will bring forward a number of amendments about this, although a number of noble Lords have already used these arguments—and rightly so.
Amendment 144ZA is also about equality. It would require education, health and care plans to specify what disabilities a child has and what reasonable adjustments are needed for the school to make to enable the disabled pupil to participate fully in the education provided by the school and to take part in the other benefits, facilities and services that the school provides for pupils. In practice, many disabled pupils who also have an education, health and care plan will receive all the support that they need through the special educational needs framework and there will be nothing extra that the school has to do.
Although a child has an education, health and care plan, that does not mean that the school’s duty to make reasonable adjustments for them no longer applies. Hence, some disabled pupils with special needs will still need reasonable adjustments to be made for them in addition to any support they receive through the education, health and care plan. For example, an infant school disabled pupil with attention deficit hyperactivity disorder receives some individual teaching assistant support through the special educational needs framework. He is diagnosed with severe asthma and needs assistance with his nebuliser. Although this is not a special educational need, his asthma is likely to be a disability for the purpose of the Equality Act. A failure to provide a reasonable adjustment would place him at a substantial disadvantage. The school trains his teaching assistant and she provides him with the assistance that he needs. That would be a reasonable adjustment for a school to make.
Amendment 205A to Clause 65, headed “SEN information report”, is also put forward by the Dyslexia Association. The amendment proposes inserting the words,
“the reasonable adjustments that are in place for disabled persons, as required by section 20 of the Equality Act 2010”.
Clause 65 places a duty on governing bodies of maintained schools and proprietors of academies to prepare an information report on special educational needs and disability provision.
This report must include: arrangements for SEN needs and the admission of disabled pupils; the steps taken to prevent less favourable treatment of disabled pupils; the facilities provided to assist access to the school by disabled pupils; and the accessibility plan that schools must publish under the Equality Act 2010. Schedule 13 to the Equality Act 2010 specifies that a school’s duty to make reasonable adjustments is an anticipatory one owed to disabled pupils generally and therefore schools need to think in advance about what disabled pupils might require and what adjustments might need to be made for them. My amendment will require the information report to include an additional requirement on schools when compiling their special educational needs information report regarding information about the anticipatory reasonable adjustments that are in place for disabled persons generally.
Amendment 205B to Clause 67, headed “Code of practice”, states:
“Page 47, line 32, after “Part” insert “, and the duties imposed by section 20 of the Equality Act 2010 (duty to make adjustments for disabled persons)”.
This amendment ensures that the code of practice includes comprehensive details about the requirements placed on a school by the reasonable adjustments duty, as per the Equality Act. This duty applies to all disabled children regardless of whether they have an education, health and care plan, or whether they have been assessed for special educational needs. This is in line with the expressed intentions of Schools Minister Edward Timpson at the All-Party Parliamentary Disability Group in April this year, when he stated:
“One of the things I am keen to do through the Children and Families Bill, and particularly through the Code of Practice, which is a statutory document, so schools have to take regard to it, is to marry up that code with the Equality Act, so that schools, teachers in schools, are clear where they are responsible, and what the rights are of young people who are in their schools. So, we are looking at referring closely in the Code of Practice to the Equality Act and everything that pertains to it that should reflect on better provision of special educational needs and disability provision within schools and the guidance that the EHRC, Equality and Human Rights Commission, has produced, a very helpful guidance around reasonable adjustments duty”.
This amendment would lead to the inclusion of information as set out in the Equality and Human Rights Commission’s reasonable adjustments technical guidance, explaining the duties a school has towards a child who has a disability, whether or not they have a special education need. In particular, this would cover all reasonable adjustments needed to address any substantial disadvantage, and how the reasonable adjustment duty works in conjunction with requirements to provide SEN provision.
I recognise that the draft code of practice on SEN issued in the last few weeks includes a number of references to the Equality Act 2010 and the reasonable adjustment duty as it applies to schools. The Equality and Human Rights Commission has had a number of very productive discussions with officials in the Department for Education, where it is clearly recognised that the reasonable adjustments duty is a very important part of the considerations schools make when looking at the needs of disabled pupils and pupils with special educational needs. With this amendment, I am asking Parliament to consider formalising the current statutory definition of the code of practice such that it is stated in the Bill that it applies to both the SEN framework and the reasonable adjustment duty under the Equality Act 2010. Given that there is a recognition in relation to pupils with disabilities or SEN, it really would be helpful if the status of government guidance on reasonable adjustments is of equivalent status to that on SEN.
There are a number of other things I should like to say within this group of amendments. I would particularly like to mention Amendment 223 from Diabetes UK. The Health Conditions in Schools Alliance is made up of more than 30 organisations representing more than a million children. They support Amendments 220 and 223, which call for duties to be placed on schools to properly support children with health conditions. The Government have now tabled Amendment 241A, which places a duty on schools to support children with health conditions and to follow the statutory guidance. This amendment in the name of the noble Lord, Lord Nash, is, as has already been said, very welcome, but it is also clear from those who have looked at it that we will require further assurance from the Government that children and parents will not have to face the problems they currently do. It would be very helpful indeed if the Minister could give us that assurance, so there will be no doubt in the future.
At the moment, as noble Lords know, too many children with health conditions are not getting the support they need. Their health is put at risk and they can be excluded from lessons, from school trips and even from school entirely. It can mean that some parents have to go into school to provide care for their child at the expense of their own job. It can also mean that children with health conditions are simply not given the opportunity to reach their potential in school, which is a major disaster for them. If a child is not getting the support it needs, there is very little a parent can do. They can, of course, take legal action, but how many, frankly, are in a position to do that or could afford it, particularly with the conditions that now have to be fulfilled?
Although the Government are to be applauded for recognising and dealing with this problem, it requires a duty on schools. We know that some schools will not meet the needs of children with health conditions. What sanctions will schools face if they do not implement the duty and follow the new statutory guidance? If children do not get the support they need, what avenues will parents have to hold the school to account? We would welcome assurance from the Government that their statutory guidance will make clear what schools are required to do and how they should do it. Placing clear duties on schools so they have policies and plans in place to support children with health conditions will mean that school staff will know what is expected of them, which is crucial, and parents will know what schools should be doing. Most importantly, it will mean children with health conditions will get the support they need and get the most out of their education. I beg to move.
My Lords, earlier in this debate, I referred the Grand Committee to my declaration in respect of Diabetes UK. I shall speak to my Amendment 223—I am very grateful to the noble Lords who have supported it—and Amendment 241A, which was tabled by the noble Lord, Lord Nash. I am very grateful to him for tabling his amendment. He has clearly listened to representations made to him. The amendment goes a long way to address the issues raised in my amendment.
I reinforce the comments made by the noble Baroness, Lady Howe. The Health Conditions in Schools Alliance supports this amendment. The alliance is made up of 30 organisations representing more than 1 million children. It called for a duty to be placed on schools to support children with health conditions. Children with conditions such as asthma or diabetes are often left on their own or unsupervised and are vulnerable to an attack or a hypo. Some children are prevented from treating their condition as soon as they recognise the symptoms, often meaning that the situation ends up worse than it should be.
A lack of understanding from teachers and staff can make the situation worse by making a child anxious and stressed about their condition, which can make it worse than ever. A lack of understanding and training sometimes means that teachers and staff are not able to recognise that certain conditions or medications can affect learning and behaviour. Poor management of conditions often means that children miss lessons. Sometimes schools do not even have policies for absence and for whether a lesson has been learnt or not.
Good management of conditions means that children are better able to concentrate and get the most out of their time in school. Exclusion from school, whether from a trip, a lesson or for months at a time, is one of the most common problems for children who face long-term health conditions. In the past few days alone, Diabetes UK has had a number of calls to explain the problems of children. I shall not mention the children by name, but one 10 year-old girl who uses a pump has been told that she cannot go on a residential trip unless her mother attends as well. The dad was not considered appropriate. It is an activity holiday, so the girl would exercise far more than usual. A staff member would not be able to look after the child unless the mother attended, so she cannot take part in activities. This is quite common. Unless parents attend residential trips and deal with the medication, children are excluded from them.
The Anaphylaxis Campaign is aware of a 12 year-old girl in year 8 who has not been able to attend school for a single day this term because the school and the local authority have not properly prepared for her arrival.
Cases where parents are left to provide care in school are known. Some parents have to give up their jobs or reduce their working hours to make sure their child attends school.
The GMB, my union, and Unison support this amendment. Their members are often left to deliver the care, such as injecting insulin for children with diabetes or giving children with epilepsy their medication. This is a major issue for trade union members. They often feel they are not properly trained or that the training is never refreshed. They are anxious about responsibility for supporting children with health conditions and are not helped to fulfil that properly. This is deeply worrying for children with health conditions and their families, and is also grossly unfair on members of staff who are required to look after children but are not given the proper training or support to do the job properly.
My amendment places a duty on schools to work with local health services to offer training and refresher training to staff. It would require schools to have a proper policy in place to support children with health conditions. That would mean that schools are prepared for things such as staff leaving or being absent for school trips, and would know what training their staff can expect. All children with a health condition should have individual healthcare plans agreed between the school, the child, the parents and specialist nurses, tailored to meet the needs in various situations. Looking after children with health conditions is not impossible, and many schools do it incredibly well. A combination of good leadership, planning, communication and training shows how it can be done. It is not burdensome. Schools that achieve that in the end spend far less time looking after those children, who manage successfully themselves. Along with healthier children, well managed conditions mean fewer missed lessons, fewer incidents in classes, fewer meetings with worried parents, happier children and more confident staff.
We know that the Department for Education wants to reduce bureaucracy in schools, but at the moment, the only option that parents have if their complaints are ignored is the costly and time-consuming process of going to tribunals. One local authority was found to have discriminated against a boy with diabetes. It is now appealing the decision. It has already cost tens of thousands of pounds. In addition to financial costs, it takes at least six months before a tribunal meets to make a decision. That is six months of meetings, compiling evidence, filling in forms and anxiety and stress for all parties concerned.
A clear duty on schools will mean that staff are given the support and training they need to offer, with confidence, the care that children need and make the lives of parents, children and schools much easier. A duty will end the current outrageous situation whereby some children’s health is made worse or put at risk simply by attending school. All children should be given the best possible opportunity to reach their full potential at school. At the moment, far too many children with health conditions are denied the right. A duty will help them to reach their potential and allow them to play a full part in school life.
As I said at the start of my remarks, I am grateful to the Government and the noble Lord, Lord Nash, but I will probably push a little further on Report. I think that the amendment does not go quite far enough. I hope we can address the whole issue of relevant NHS bodies being fully engaged in the care plans of individual children. The amendment does not quite address that.
My Lords, I will be brief—I am sure that the Minister will be grateful for that—but I want to say two things at the beginning. First, the Minister needs to know that many organisations think that a great deal in the Bill is extremely welcome. The tone of the debate seems critical. I think that we have the number of amendments that we have simply because people care about the issue and have discussed it at length. I have met several organisations which have said how valuable a great deal of what is in the Bill is taking forward work with disabled children. I thought that we needed to have that on record while we are all complaining bitterly about the things that the Government have not done.
I shall speak to Amendment 220. Most of the points have been made, and I will not make a long, heartfelt tirade about the group that I care about. I just say that I work closely with children with congenital heart disease, children born with half a heart, many of them with hypoplastic left heart syndrome. They usually look like perfectly ordinary children but they are in serious difficulty when they get to school. I am therefore immensely grateful to see the Minister’s amendment but I ask that we see the regulations, because the devil will be in the detail as to whether it really meets the requirements. If we can see the regulations early, it might relieve the pain on Report, when people will otherwise want to speak at length again.
My other question is: once we have the regulation and the detail, how will families be able to complain without taking themselves through massive tribunal cases, as we know has happened? It might be worth the Government looking at how parents raise issues under the regulations when they feel that their needs have not been met, because that would save everybody pain. It is no use saying to ourselves that Ofsted will deal with that, because we know that it visits only every four years. Some children have been right through school and never seen an Ofsted inspection. If we could have some clarity on that, it would certainly speed things up.
My Lords, I speak in support of Amendment 223, to which my name is attached. I will be brief, because most of what I would have said has already been said well by the noble Lord, Lord Kennedy of Southwark.
I particularly support the emphasis that he put on the need for teachers to have the right training to deal with children with medical conditions. Without that training, it is likely that any guidance issued will be completely defunct. The NHS, local authorities and schools need to work co-operatively to ensure that training is provided and accessible to teachers.
I welcome the government amendment most sincerely. I am glad that the Minister has tabled it at this stage. My only problem is that, without seeing the draft guidance, we have no way to comment on whether its breadth and depth will be adequate to meet the needs of children with medical conditions. I therefore hope that the Minister can make a commitment to bring forward the draft guidance before Report, so that we can improve it—not criticise it, but help to improve it.
I also want to ensure the inclusion of medical conditions not already mentioned—the list is exhaustive— such as diabetes, epilepsy, asthma and allergies, but also cancers. It is often thought that children with cancers have short lives. Some, unfortunately, do, but most childhood cancers are now long-term conditions and should be treated more as chronic diseases, not short-term ones. I hope that the Minister will include dealing with cancers in the guidance.
The guidance must recognise both the social and emotional needs of young people with long-term medical conditions, and the fact that a health condition can impact on a child or young person’s ability to learn. Another important point made by the noble Lord, Lord Kennedy of Southwark, was the need to involve the parents and children to ensure that the school understands their condition and its emergency needs. A child having a hypoglycaemic attack requires immediate treatment. A child having an allergic attack requires immediate treatment. A child with a migraine needs to be treated with compassion, because they may lose their vision and hearing. Putting them in a corner or a quiet room does not solve the problem. Those are some of the things that children with a medical condition suffer on a daily basis in schools. If we cannot get things right for children in the Bill, we fail them.
My Lords, with the permission of the Grand Committee, I would like to speak sitting down. I have added my name to Amendments 67 and 68, and I will not repeat the points that my noble friend Lord Storey has already covered, although I completely agree with them.
I, too, want to focus on children with medical conditions. We have had a lot of information, but I have met three or four children with differing conditions. The problem is when schools do not recognise a medical condition. A young man aged 18 with ME had a statement, but it was for his behaviour, not for his medical condition. Even after the consultant wrote to the school, the school refused to believe that the condition existed. A girl with a congenital heart condition was taking an exam. The invigilator had not been informed about the technical equipment she had to wear, and she was pulled out of the exam. Cancer has already been mentioned. There have certainly been some serious educational support issues. I met one young lady who, in the year she had off from formal schooling, had one supportive teacher who kept in touch academically and socially. None of the others did. Home tuition via the local authority was extremely patchy and had not linked up with the school, and nor had the hospital school. As a result, the year was, in her phrase, “entirely haphazard”.
We have already heard about a young girl who has severe allergies. A mother has written saying that she had an argument with school staff. The head and deputy head said that male members of staff could not deliver the Epipen because child protection trumped a child lying on the floor in the middle of an allergic attack. This is exactly the sort of reason why parents are so insistent that things are remedied. I am very grateful to the Minister for Amendment 241A, which starts to get there. Others have said that it would be helpful to see a draft of the code of practice because this is so wide-ranging that we need to be sure.
I have a couple of suggestions that may be helpful. Not every teacher in the country can be trained in all the different medical conditions. Why not have a handy page on direct.gov.uk and schools’ websites so that if a teacher has a child coming into their class or a tutor has a child coming into their tutor group, they can look up what happens and get some idea before they start liaising with the child and the child’s parents? Then that person takes responsibility for ensuring that other staff, including exam invigilators and PE teachers, are fully appraised of what the child can do. There should certainly be a teacher and a governor in each school with oversight of this, particularly if the duty comes into force. It may or may not be the SENCO, but there should be someone with a wider strategic view to make sure that this wide range of medical conditions is covered.
There is one issue that no one has raised so far: children with medical conditions who have some learning need during their condition. It may not be enough to warrant a full statement or education and healthcare plan, although, certainly in the case I am about to use as an example, it would have been helpful. The case is that of the young lady I met through CLIC Sargent. It would have been extremely helpful for her to have had co-ordinated educational support, but there was no recognition of the effect that drugs, such as those used in chemotherapy, have on patients. Often there is short-term memory loss and brain fog, and with a brain tumour there can be a serious cognitive impact that may never improve. Those effects are omitted from Amendment 241A. That may be because they are not specifically included, but many parents are concerned that their children with medical conditions have learning issues that are completely left out in the cold. I hope that the boundaries that the noble Lord, Lord Low, and my noble friend Lord Storey talked about can be merged so that we can ensure that the child and the child’s needs are at the heart of what we are doing.
My Lords, I rise to speak in support of my noble friend Lord Low. I have looked to my experience in school—admittedly a few years ago—and thought about how the Bill might have affected me. I do not have special educational needs, and nor does my noble friend Lady Campbell of Surbiton, who is not in her place, but we both have access needs. My noble friend was considered to have considerable needs, and I was considered to have lesser needs. I was sent to a school miles away from where I lived. At the time it was the only school in South Glamorgan that was allowed to take wheelchair users. One might imagine that it was an accessible school. However, access was appalling and nothing in particular was done to improve it. There was an occasional ramp in the wrong place, and six people were employed to carry wheelchair users up and down the stairs. I hope that it is better today. I guess it was a product of its time.
Physical access would be better, but we have to take into account other interruptions for things such as physiotherapy in my noble friend Lady Campbell’s case or missing school. I missed a period of school to have metal rods inserted in my spine to stop it collapsing. I had to wear a plaster cast jacket from my chin to my hips for six months, which left me with very restricted movement, but nothing was done to make sure that I could stay in school. I just had to make do. I then missed a year of university because I snapped my metal rods—admittedly I was training to be a Paralympian, but that is an aside. However, it was such a major procedure that the only option for me was to write 12 essays and sit my exams within two weeks of university or to drop out of the whole year. There was nothing in place to think about how my impairment affected my ability to study. My noble friend Lady Campbell told me that because of physiotherapy and missing classes she was considered and classified as a “slow learner”. Accessibility and these other issues have a massive impact on the ability to learn and the opportunities that might arise out it.
I also wish to speak at the request of the noble Baroness, Lady Wilkins, who cannot be here today because she is at a family funeral. She strongly supports Amendments 87 and 105. She says the government Green Paper, Support and Aspiration, outlined a vision of support for disabled children and young people and those with special educational needs. It provided a vision of a more coherent and joined-up approach to meeting the needs of these children and young people. However, the Children and Families Bill concentrates on children with special educational needs only, to the detriment of disabled children. Despite calls from the Education Select Committee following pre-legislative scrutiny, and Members of the House of Commons during debates on the Bill, the Government have refused to include disabled children and young people without SEN within the scope of the reforms.
Research has estimated that around 25% of disabled children may not have SEN. Yet it is just as vital that these children and young people have access to the improved services and better co-ordinated provision that should be the outcome of the draft provisions. By making the changes proposed in Amendments 87 and 105, the Government would ensure that they keep their promise to make the new system better for all disabled children and young people and their families. In addition, the Government will also ensure that all local authorities work in the most streamlined and efficient way to provide services to disabled children and young people, and those with SEN.
My Lords, I, too, thank the Minister for his amendment because it is a great way of starting the debate. I have put my name to Amendments 220 to 222 because, as we have already heard, too many children with health conditions are not getting the support they need in schools and this problem needs to be addressed. They include, as we have heard, children with diabetes, epilepsy and incontinence and many others who all need greater consideration. However, I want to concentrate on children who suffer from sickle cell disorder, an invisible illness.
There is a strong feeling among doctors, medical practitioners and those working with children who suffer from sickle cell that provision of community nurses who deal with sickle cell sufferers should be expanded and more resources made available in schools. According to a British Educational Research Journal article, many young people who suffer from sickle cell disorder report extensive negative experiences at school. Around half have been prevented drinking water in class and going to the toilet. These are simple, basic needs of sickle cell sufferers. More than one-third were made to do unsuitable exercises and were called lazy when they got tired because of their sickle cell condition. Awareness needs to be raised by nurses visiting schools whenever and wherever necessary to support and educate staff, particularly sports teachers, about simple practices such as children getting dried off quickly after swimming, cooling down after vigorous exercise and being allowed to drink freely in class. Staff also need to be aware of the brain problems, such as silent stroke, that can occur at any time to those suffering from sickle cell.
Young people were reluctant to disclose that they had sickle cell, as they found many teachers were not knowledgeable about the disorder and felt it might be seen as a disadvantage. In some cases it can be, because if they have an attack or a crisis they have to miss lessons at school and therefore do not reach their full potential. It is all about equality, about educating schools and about training. The provision of specialist nurses in the community is also patchy and not well resourced. This needs to change.
The Sickle Cell Society believes that there needs to be a specific guide for schools on sickle cell disorder, rather than relying on generic guidance. Managing Medicines in Schools is limited because it refers only to medication and what to do in an emergency. It misses out the whole area of prevention and preventive measures, which is vital to keep those with sickle cell disorder safe and well. Also, it is no good having advice on managing medicines if school staff can simply refuse to administer them. Research shows that only a quarter of schools would agree to give children with sickle cell disorder mild painkillers, which is a problem for those suffering sickle cell, who need such medication if they have a crisis or an attack. We need to rewrite the guidance Managing Medicines in Schools to include sickle cell, which is the most common single genetic condition in England, affecting one in 1,850 of all births in England.
I know that the Government’s view is that the local school is best placed to know the needs of its children, but research has shown that schools are clearly not well placed to do this with sickle cell disorder and need considerable help and guidance to respond adequately. All children with medical conditions are supposed to have an individual healthcare plan, but research shows that only 43% of schools with children with sickle cell disorder even claimed to have such a plan. Checking that all schools have such plans in place for children with sickle cell disorder is essential. If such a policy is implemented it will reduce admissions of sufferers to hospital, which is an added, unnecessary strain on the NHS. Unfortunately, children suffering from sickle cell disorder do not have any provision under special educational needs; therefore I believe that a statement of special educational needs is necessary to help protect these children’s well-being at school and I look forward to hearing the Minister’s views. I hope that these children will be brought into the fold and given greater consideration.
My Lords, I shall speak to Amendments 220, 221 and 222, tabled by the noble Lord, Lord Storey, and Amendment 223, tabled by the noble Lord, Lord Kennedy. I join other noble Lords in welcoming the government Amendments 241A and 274. I declare an interest as chief executive of Diabetes UK. We have been delighted and I thank the Minister and his department for the way they responded to the very real case for improved support for children in schools with health conditions, a case that was made not only by the Health Conditions in Schools Alliance but by some parents and children whom the Minister very kindly agreed to see during the summer. These laid out their personal cases in rather heart-rending fashion and demonstrated just how fundamentally the support given in school can influence not only children’s health but also their self-esteem, their educational attainment and their family’s economic circumstances if a parent has to stop working to meet the shortfalls in support that the school is failing to provide.
This is not a small-scale problem: we have heard from many noble Lords this afternoon and there are many more than a million children involved. I shall not go through all the statistics—noble Lords have heard many of them already—or even the heart-rending stories, because I think the Minister got that in bucketloads during the summer. I do, however, want to raise some practical issues that go with the Government’s amendment to lay a statutory duty on schools to provide support. We are very pleased that the amendment includes academies—that is very welcome—but the statutory duty is not enough on its own and we are very pleased that the Government are committed to backing this up with statutory guidance.
That needs to be pretty strong and clear and to include some of the issues that have been raised in the amendments from the noble Lords, Lord Kennedy and Lord Storey. I should like to highlight three in particular because they also need statutory force and, if they are not going to be in the Bill, will the statutory guidance be sufficient to give them statutory force? The first issue is that each school must have an appropriate policy for dealing in an anticipatory way with the health needs of children. The second is that every child must have a healthcare plan, agreed with the child and the parents. The third issue is one gleaned from discussions with parents, teachers and trade unions about the fundamental requirement for appropriate training for school staff, which the NHS is often not stepping up to the plate and providing, a point that the noble Lord, Lord Kennedy, raised. This is fundamental if school staff are to feel confident in dealing with the wide range of health conditions. It must be provided by the NHS but currently in many places that is not happening. I believe that we should press the Minister to consider placing in the Bill a duty on health authorities to co-operate, as was outlined in Amendment 221 from the noble Lord, Lord Storey, and Amendment 223 from the noble Lord, Lord Kennedy.
Of course, as well as statutory measures there will need to be a range of good practice information, model policies and the ability for schools to access support and advice as we move forward. I am sure that the voluntary organisations involved in the Health Conditions in Schools Alliance will be pleased to play their part in providing that sort of information and support. However, there is one further issue that we perhaps need to examine: whether there is a way of encouraging, and indeed checking, on occasions, whether schools are adequately complying. I wonder if I could urge the Minister to consider urging Ofsted to use its guidance for inspectors to reinforce the importance of the new duty when it comes into play, and perhaps to encourage Ofsted to do what it does on occasions, which is, as part of the inspection regime, to gather data over a period about a particular issue to illuminate that issue and to gain perspective on the effectiveness of the implementation of the duty. That could be in 2015, when schools have had plenty of time to get themselves sorted. I would very much appreciate it if the Minister could consider encouraging Ofsted in that way.
In line with a request from other noble Lords, would the Minister be able to ensure that noble Lords see at least the scope of the draft statutory guidance before Report? As the noble Baroness, Lady Howarth, said, that would avoid unnecessary heat and steam on Report. Peers need to be reassured that the combined duty and the statutory guidance will be sufficiently strong together so that we are not applying a statutory duty that is a bit of pig in a poke.
I thank the Minister again for this very important first step in giving schools a statutory duty. It has made a real contribution for children and families. I do not know whether he is e-literate, but if he reads the Diabetes UK Twitter feed he will see that the twitterati are in full flow with praise for what he has done. We now ask him to move even further up in the pantheon of heroes by showing in his response how some of these important accompanying conditions can be assured.
My Lords, I have not put my name to an amendment, and I shall speak only for a brief moment to make one point. I have been disappointed that no noble Lords have mentioned the other children in these schools, because the attitude of the other children is exceedingly important, both for the children who are suffering from disability and SEN and for those who are not. I remember having an all-party group in this Room, where a head teacher had brought four or five of her girls. It was a school for children with mobility problems. It became apparent as one listened to them that the whole school was committed to caring about these children, and this self-evidently makes a huge difference. Would the Minister consider putting something in his guidelines to address this problem?
My Lords, I, too, have not tabled any particular amendment, but I was minded to contribute by the tone of the Minister’s Amendment 241A, and what has been said about that. I entirely endorse all the positive things that have been said about what is happening, and the remarks about the noble Lord, Lord Storey, and my noble friend Lord Northbourne. I want to concentrate on the other children, as well, because this is all concentrating on one very small part of the population of the school.
I refer the Committee to Clause 19, on which the initial contribution by my noble friend Lord Low was made. It is headed, “Local authority functions: general principles”, and the next line says, “Local authority functions: supporting and involving children and young people”. Paragraph (d) refers to,
“the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes”.
It does not differentiate between any of the children; we are talking about all our children.
When we are considering this Bill, special educational needs are mentioned—but if you look at the numbers with those needs, you can see that it comes to about 2.8% of our children. Another 16% are subject to school action and school action plus, which means that 81.2% of our population are not being considered by what we are doing. That worries me.
I declare two interests, one as chairman of the All-Party Parliamentary Group on Speech and Language Difficulties. We have just done a report on the link between social disadvantage and speech, language and communication needs. That follows work that I did as Chief Inspector of Prisons and, later, on the number of people in young offender institutions who were found to have speech, language and communication needs. Clause 19(d) seems to require a duty for every child to be prepared to be able to engage with education so that they can get their best possible educational and other outcomes. That of course includes all those who have problems in gaining that entry into education. It may be that there is a physical or a mental problem. Later, I want to introduce something that has come up in my second context, as chairman of the Criminal Justice and Acquired Brain Injury Group, which is doing a huge amount of work on neurodisability. That is different from learning disability, which tends to be associated with congenital conditions, whereas a neurodisability can result from all sorts of other things, including acquired brain injury and the neurodevelopment of a child.
I come to my second question for the Minister. Surely what we are talking about here comes under the overall umbrella of child development. We are talking about the problems of child development for a particular group at this moment, in this group of amendments. However, when I look at the overall conduct of child development, I am mightily confused about where the Government stand on this. Who is the Minister for Child Development? If you look at what comes later in the Bill, on the 0 to 25 pathways, you can see that only one organisation is responsible for someone from 0 to 25. That is a local health and well-being board, which has nothing to do with the Department for Education or the Department for Business, Innovation and Skills, or whatever it is called, and nothing to do with the Home Office, the Ministry of Justice or the Department for Communities and Local Government. It is a healthcare organisation.
If you look at the start of the journey for child development, the early years foundation stage, that, too, is the responsibility of the NHS, which is responsible for doing the assessment on which the judgment is made as to whether a child has a learning difficulty, a learning disability or whatever. I therefore endorse entirely what the noble Baroness, Lady Brinton, said about oversight and what my noble friend Lady Howarth said about the need to have the details here. We are talking about things that concern us greatly, not just today but for tomorrow.
We must be concerned about what the Government’s plan is for the oversight and the conduct of all these things that we are talking about. I do not know whether everyone has read in detail the code of practice that came out. It is full of sentences that start, “Local authorities must…”, but there is no indication of how that “must” is to be overseen, who is to do it, who is to fund it or what the “must” is—there are just lots of “musts”. My experience as a soldier is that unless someone is actually responsible and accountable for making things happen, nothing will happen.
Judging by the content of the amendments, we are going to hear masses of good sense and good advice, all based on experience, which will make our children better. What worries me is that all that will go nowhere unless the Government have an overall construct for the oversight and introduction of all the things that we are going to talk about. I would be very grateful to hear from the Minister exactly where the Government stand on delivering that.
My Lords, my name is attached to Amendment 87 along with that of the noble Lord, Lord Low. It relates to Clause 25, which is about the integration of local authority services with health services and care services. It comes back to the whole issue of disability as well as medical conditions and so forth. This was the subject of the noble Lord’s initial presentation on Amendment 65B, which led this whole group, and it is an important issue. The problem is that Clause 25 says firmly:
“A local authority in England must”—
just as the noble Lord, Lord Ramsbotham, was saying—
“exercise its functions under this Part with a view to ensuring the integration of special educational provision with health care provision and social care provision, where it thinks that this would … promote the well-being of children or young people in its area who have special educational needs”.
Again, disability is not mentioned there. I do not want us to lose, amid the other things, the need to cater for those with disabilities, as the noble Baroness, Lady Grey-Thompson, made clear. There are features here that are very important but are not covered. They are covered better in the code of practice but the Bill itself does not mention them, and it is very important that we do not forget them.
My Lords, we have tabled Amendments 69, 70, 90 and 91, and we have added our names to Amendment 223 in this group. We have had a very long debate and I hope that I am not going to repeat too much of what colleagues have said. I start by echoing the points that the noble Lord, Lord Low, made in his contribution. The first batch of our amendments very much dwells on that issue. It is important and it picks up the point that the noble Baroness, Lady Sharp has just made: it goes to our concerns about the heart of Part 3 of the Bill. We believe that, despite the very good intentions in the Bill to be inclusive, it appears that it still intends to exclude those with a recognised disability or chronic illness from a whole swathe of its provisions, and we believe that that is essentially still divisive.
We also feel that it is important that this issue is addressed and resolved now, at the outset, because it is a flaw that runs through the heart of Part 3. It needs to be tackled at this stage, not least because when we talked to the clerks about future amendments, they identified another 40 areas where we would have to table amendments to achieve a similar effect if we are not able to resolve it at the outset in the original definitions. So it is important that we come to a proper understanding and agreement with the Minister at this point about what is intended.
Our amendments, in common with those of a number of noble Lords, have sought to tackle whether the definition of SEN includes disability by amending the definition. Our intention and the way we have gone about it—a number of noble Lords have attempted to do the same thing—is to extend the scope of the Bill to refer to the definitions in the Equality Act 2010, to which the noble Baroness, Lady Howe, and others have referred. Our aim is to provide an overriding, inclusive definition which will apply throughout Part 3. We think that this is important and we feel that the arguments are overwhelming and compelling on this count.
The noble Lord, Lord Low, referred to research that we already have from the universities of Bath and Bristol, which was commissioned by the department and estimated at that time that in the region of 25% of disabled children may not have special educational needs. Indeed, that evidence was quoted by the Minister, Edward Timpson, in the Commons, when he said that,
“it is estimated that 75% of disabled children will also have special educational needs and so will be covered by the reforms”.—[Official Report, Commons, Children and Families Bill Committee, 19/3/13; col. 356.]
By definition, then, 25% are not. He also made it clear that the definition of SEN in the Bill mirrors the current definition, which, as we know, excludes many children. Again, noble Lords have cited statistics in that respect. The Minister himself took a similar line in his letter after Second Reading, in which he said that 75% of disabled children would be classed as having special educational needs. We have heard some examples this afternoon of the problems that this causes.
The noble Baroness, Lady Grey-Thompson, made the point very eloquently and we have heard other examples of children with a physical disability who, because the school was completely accessible, were not categorised as having SEN, or a child with serious health conditions that do not impact on their learning also not being classified as having SEN. We really need to bottom out whether it is the Government’s intention that such children would continue to be excluded from the provision in the Bill. This matters enormously because the truth is that assessment of SEN is the gateway in the Bill to all the other support provisions. As it stands, the joint commissioning provision and the local offer would be available to those defined as having SEN but not to the 25% who are not defined in that way. It would exclude the non-SEN children from health and social care provision to which some of them may already be entitled—we might be going backwards. This cannot be right and it goes against the whole ethos of the Government’s original proposals.
We know from this debate and from the level of correspondence and meetings that we have had that this remains a key ask of the sector; its frustration with the current proposals in understandable and urgently in need of resolution. The principles of the Green Paper were to make a system that would be simpler for parents, children and young people. At that stage, it was understood that education, care and health plans and the local offer would bring together current entitlements for disabled children and young people, regardless of what combination of education, health and social provision they require. That seems to us to a good principle, but we seem to have moved a long way from that excellent aspiration in the Green Paper.
Despite attending various meetings and briefings with the Minister, as well as looking back over the Commons debate, I have yet to hear a coherent argument as to why the Government are now insisting on this narrow definition of SEN, which appears profoundly to limit access to services. More recently we have heard that they do not feel that there is enough evidence that some groups of young people would be excluded from that provision but their own research seems to disprove that. Again, today we have heard examples of people which help to prove the point being raised.
Another argument seems to be that the code of practice will address some of those issues. Having looked at the draft code, it does not seem to shed sufficient further light on those key concerns. Anyway, reference to the code of practice is not good enough. We want this Bill to bring together all the different types of support that children need, which was promised in the Green Paper. That is key to ensuring that the needs of those children and young people are taken into account in joint strategic planning and commissioning, and that their educational progress is tracked.
I hope that the Minister will recognise the strength of feeling on this issue and put the sector’s mind at rest by agreeing to take this issue away to find a more acceptable, fully inclusive definition of SEN. If the Government intend the Bill to cover all children with a recognised disability or chronic illness, will he agree to work with us on a wording that would definitely and genuinely achieve that?
I now turn to the amendments tabled by the Government which address children with longer-term medical conditions. Again, we have added our name to Amendment 223 which addresses this issue. Obviously, we very much welcome the progress that has been made. It seems that the amendment remains quite general in its current form. I know that several other noble Lords have already posed questions to the Minister but I should like to add some of my own. How will a medical condition be defined and who will be covered by it? What is meant by the requirement for schools to “make arrangements” for support? Is that the same as a duty to secure the support? Where is the role of health authorities in working with schools on this? Why are requirements to consult parents and to provide appropriate staff training not set out more clearly? Perhaps more fundamentally—again, this challenge has been raised today—when will the draft guidelines be available and will we see them before Report?
We have had a good debate today. I am sorry to have held up the debate further but there are important questions that need to be answered. I very much look forward to hearing the Minister’s response. I hope that on all these issues he will continue dialogue to find forms of wording that will provide the necessary assurance to the sector on these issues.
My Lords, this is our first debate on Part 3, and it has been excellent and extensive. I should particularly like to thank the noble Baroness, Lady Howarth, for her opening remarks. I thank all noble Lords who have contributed and shared their great experience and expertise. I am also grateful to those who have taken time over the summer to help me, as the new boy, to understand the issues and the history in this area, particularly the noble Lords, Lord Low, Lord Rix and Lord Ramsbotham, the noble Baroness, Lady Warnock, and my noble friends Lady Cumberlege, Lady Eaton and Lord Storey.
Before moving my Amendments 241A and 274 and respond to specific points in the debate, I hope that the Committee will find it helpful if I set out the context of our reform programme. Part 3 will deliver the biggest change to the system since the reforms that flowed from the report of the noble Baroness, Lady Warnock, in 1978. Her work transformed the lives of many children and young people, allowing them to enjoy the benefits that a high quality education can bring. We have seen other changes in law and society that have shaped this country’s view of disabled children, including such important legislation as the Disability Discrimination Act 1995 and the Equality Act 2010 and, of course, the great success of the Paralympics last year.
The changes we have seen for this group of children in our lifetimes and the challenges ahead were brought home strongly to me when I visited Chailey Heritage School with my noble friend Lady Cumberlege at the start of the school year. There I saw an institution that was founded out of charity to provide training in crafts to children born “crippled”, as it was termed then in the East End of London. Now it offers outstanding education, care and support to children and young people with the most profound and complex needs who, with excellent teaching, care and the aid of modern technology, are being supported to learn and to fulfil their great potential. Disabled children and children with special educational needs must all be treated first as individuals. They all have different needs. It is the Government’s concern, as I know it is of everyone in this room, to ensure that our services are supporting each of them and their families in the best way they possibly can.
I pay tribute to the work and legacy of the noble Baroness, Lady Warnock, and to the tireless work of many of your Lordships in championing the rights of children with SEN and disabled children. I also know that I do not need to tell you that, despite all the successes of the past 30 years, the current system is not working as it should. Fundamentally, successful reform will be about a change of culture. As we all know, it is tempting to think that by legislating a word here and a new duty there we can solve complex issues. However, what matters is how professionals work with children and families. Many noble Lords here have direct experience of the struggles that families can face. All of us know people who have had to fight to get the support that their child needs, grappling a faceless and apparently endless bureaucracy in a system that seems set up not to help but to frustrate.
This reform aims to change that. Its simple but ambitious aim is to unite services around the needs of the family, putting children, young people and parents at its heart. Legislation cannot do that alone but the Bill sets the framework to support the right ways of working. The detail is in the code of practice, which I hope noble Lords have now had the opportunity to read. It has been informed by the experience of the pathfinders. They are showing how services can come together and how families can help share the available support. I hope that those noble Lords who were able to hear from some of the pathfinders last week found their experiences both helpful and encouraging. I was struck then, and on my visits to pathfinders in Greenwich and Hertfordshire, how they were working with families to develop support that meets their needs and the impact that that support and the new ways of working were having in a much more co-operative environment.
Turning to the definition of SEN, this group of amendments reflects concerns that some children and young people might miss out on the benefits of the new system. A great many noble Lords have spoken about this and I apologise if I do not mention them all by name. It is not the Government’s intention to prevent any group of disabled children from receiving the support they need. We must ensure that all children who need support to access education because of disability or a special educational need can do so. The definition of SEN is deliberately broad:
“A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her”.
The Bill defines a learning difficulty or disability as,
“a significantly greater difficulty in learning than the majority of others of the same age, or … a disability which prevents or hinders”—
a child or young person—
“from making use of facilities”.
On that point, I wonder if the Minister will accept—as we talked about when we met him this week, and based on the contributions from others today—that there is a degree of circularity in language and in practice around this definition. As we heard from the noble Baroness, Lady Grey-Thompson, and others, very often the access to education and learning implications of a disability are not recognised by schools or local authorities as a special educational need and, under the definition of this Bill, if they are not recognised as a special educational need then they will not fall into the scope of the Bill. This is a big problem that everyone has been trying to clarify. I realise that it is very complex but we need to get to the hub of this. I would be grateful if the Minister could explain, outside the circularity of this language, why the Government are excluding the kind of young people that the noble Baroness, Lady Grey-Thompson, and others were referring to.
I am grateful for the noble Baroness’s intervention. I shall take away all the points that have been made today and consider them further, including, I hope, understanding more clearly the point that the noble Baroness made. The Bill defines a learning difficulty or disability as significantly greater difficulty in learning than the majority of others of the same age, or a disability that prevents or hinders a child or young person from making use of facilities. This means that the majority of disabled children also have special educational needs, and we have seen from the pathfinders that they have taken a broad view of the definition in shaping their local offers and joint commissioning arrangements.
In addition to the SEN framework, there is other important legislation that protects disabled children and young people. The Equality Act 2010 makes it clear that all education providers and commissioners must make sure that reasonable adjustments are made for those with disabilities, including providing auxiliary aids and services such as specialised computer programmes, hoists and sign language interpreters. Parents can legitimately complain if education providers fail to deliver those adjustments.
Equally, in the health system there are legal protections. Section 3 of the NHS Act 2006 gives CCGs a statutory duty to provide health services to meet the reasonable needs of a child with a complex health need. Section 17 of the Children Act 1989 gives local authorities a general duty to safeguard and promote the welfare of children in need in their area. Together, therefore, the provisions in the Bill and existing legislative arrangements provide important protections and support for disabled children and their families.
Before amending the Bill, we need to understand which children might not be supported by these provisions and how changing the Bill would help them. I turn to health conditions and my amendment. A number of the amendments in this group—those tabled by the noble Lords, Lord Low, Lord Storey and Lord Kennedy, and the noble Baroness, Lady Howarth—concern children with long-term health conditions. I agree that children and young people with medical needs should not miss out on a full education simply because they have a medical condition. They should not be prevented from active participation in wider school activities that are so vital to their academic attainment and social well-being.
I have heard the evidence that suggests that current arrangements do not always work as they should. That evidence included a meeting with the noble Baroness, Lady Young, and the case made very powerfully by two young people, Beth and Max, whom she brought to see me. I find it appalling that some schools fail their pupils in such a fundamental way. While it remains the case that most schools manage this issue well, and it is important to acknowledge that, it would be wrong to ignore the instances of poor practice. Where there is poor practice, pupils can be placed at disadvantage or risk simply because they are not receiving the right support for their health needs.
Noble Lords will have heard me say on many occasions that this Government trust teachers and head teachers to run their schools and to adjust their provisions for the particular circumstances of their pupils. We believe that this applies to provisions such as PSHE and careers; all good schools should have an active programme on these matters, but they must be free to adjust to the local needs of their particular pupils. However, in the case of medical conditions, this is not a question of subjectivity. When a pupil has an epileptic seizure, there is a clear procedure that needs to be followed; it is not a question of interpretation. At certain times, a diabetic child will need more insulin or more glucose—it is as simple as that, and there is no scope for subjectivity. The same will apply to asthmatic pupils.
That is why I have tabled an amendment giving schools a new duty to make arrangements for supporting pupils with medical conditions and to have regard to statutory guidance when meeting the duty. I do not do that lightly; I am aware that many other duties could be placed on schools. However, ensuring that children who already have medical issues are not placed at further risk seems to me to be extremely important and obvious. This builds on the commitment made in the other place by my honourable friend the Minister for Children and Families to revise and reissue the managing medicines guidance for schools later this year, and I thank all noble Lords who have spoken in support of this amendment.
I reassure the noble Baroness that the amendment is not just about managing medicines but is about supporting pupils with medical conditions. We do not plan to set out a long list of particular medical conditions but I believe that we intend to cover her concerns in the regulations. I shall go on to explain how we might do that.
I am pleased to hear that news of the new duty has been warmly received by stakeholders. Unison has welcomed the guidance and what it will mean for its members. The Council for Disabled Children has said that this should ensure that the,
“needs of children with medical conditions … are fully met in school, enabling them to achieve the best possible health and education outcomes”.
Diabetes UK has described the duty as a “major step” to help to ensure that children with long-term medical conditions receive the support that they need at school. Those are just three among many stakeholders who have offered their assistance with developing the guidance, and signals strong commitment and determination to deliver guidance that will make a real difference.
The noble Baroness, Lady Howe, and others asked for assurance that we will really make this work. I have therefore asked officials to work with noble Lords who are interested, the Health Conditions in Schools Alliance and other partners, including unions, the Council for Disabled Children and the Department of Health, on the content of that guidance. I hope to be able to report on progress before Report. I note the point that the noble Lord, Lord Northbourne, made in this regard.
Early discussions have already taken place with members of the alliance and other stakeholders, focused specifically on the content of the guidance. We are fully aware of the need for the guidance to cover issues such as the role of school policies and the appropriate use of individual healthcare plans. Other key issues that we would expect to see covered in the guidance include staff training, co-operative working with healthcare and other professionals, and working with parents in the best interests of their children. In addition, we would expect that the guidance will signpost to good-practice case studies and other useful information relevant to specific medical conditions.
I assure the Committee that, in my view, advice from our stakeholders will be invaluable in ensuring that we get the content of the guidance right. Their help will be critical in enabling us to produce guidance that is accepted by schools and that is effective in helping them to support pupils with medical conditions.
The answer is yes.
In developing the guidance, we would welcome discussions either bilaterally or by hosting a round table discussion, whichever is more helpful. Once the draft guidance is prepared, we intend to consult publicly before publishing a final version next year. This will give schools one term’s notice of when the new duty comes into force.
I have listened with interest to the debate on the other grouped amendments. I hope the Committee will agree that the amendment I have tabled will help to support a significant group of children, many of whom meet the Equality Act definition of disability, who previously may not have been explicitly covered by the provisions of the Bill. I would like to reflect further on the other points raised in debate today in relation to the other amendments before us and consider them further. In doing so, I would be grateful for the Committee’s help in providing specific examples of other conditions or other groups of children who are having their educational opportunities restricted, and who are not supported by either existing legislation or the provisions of the Bill as they currently stand.
The noble Lord, Lord Low, gave some specific examples, most of which would be covered by the amendment that I have tabled, but other examples would be helpful. It is always a pleasure to reply to the noble Baroness, Lady Grey-Thompson, who is one of our country’s greatest athletes—
I have listened to this debate with great interest, very much as a novice in this area, although I have been governor of two schools where we had disabled children. I got the impression from what various speakers have said in this debate that there are problems for all disabled children, not just individual groups. The Minister should take away the problems of all disabled children in all sorts of schools.
I thank the noble and learned Baroness for that intervention. Clearly, we all got that impression, but we would like help on precisely what category of children are not covered by the existing legislation. I will take away all the points made today and we will reflect further.
Perhaps I may also push the Minister on a point of clarification? I have a quote from the Minister in the Commons, who said that the SEN provision was in line with the current SEN provision which, as we have heard, excludes a whole series of categories of children. Does the Minister endorse the view that the SEN definition has not substantially changed, and that whole swathes of children will fall outside that definition?
The noble Baroness is right that the definition has not substantially changed. Our position is that most disabled children—75%, according to one study—have a special educational need, and the others are covered by other legislation, particularly after the amendment that we tabled today. I would be grateful for guidance on those categories of children that we may have missed and how we could help them further.
On that point, I think that it would be helpful, if we are to help the Minister, if he could first tell us which other legislation he thinks covers the other 25%, and then we can think about which other groups might not be covered. Is it not anyway the case that what the Government are attempting to introduce here is a new integrated system with a local offer attached? That would still mean that 25% of children could not be avail themselves of the integrated provision in the new integrated system proposed under the Bill.
The Equality Act, the Children Act and the NHS Act are the relevant legislation, but I will provide further details and more granularity on that. I repeat that the Bill is about educational needs—but we will go away to consider this further.
On categories of children who are not covered by existing legislation, the noble Baroness, Lady Grey-Thompson, made the point about physiotherapy and missing school, among others. I would like to understand more about whether, in the modern day, children to which she referred would be covered by the Bill or existing legislation. In response to the concerns expressed by my noble friend Lord Storey about whether special educational provision includes provision to enable children to access education, the answer is yes. I will write to him with more details.
The noble Baroness, Lady Howe, asked whether the code of practice is intended to marry up with the Equality Act. The answer is that it does. We believe that it does—and we are clear that we must make appropriate links between SEN and the Equality Act duties in the code of practice, and are happy to look again at the scope for improving the draft code of practice on this.
The noble Baronesses, Lady Howe and Lady Young, asked what would happen if a school failed in its duties. The statutory guidance will give a clear signal to schools that supporting pupils with medical conditions is important. It will make it clear to schools what is expected of them in taking reasonable steps to fulfil their legal obligations and to meet the needs of pupils with medial conditions. Parents will be able to raise concerns though schools’ complaints procedures, and I will talk to Ofsted about this to reinforce the point. I am sorry to disappoint the noble Baroness, but I do not tweet and, even if I were capable of doing so, frankly, I do not have the time at the moment.
The noble Lord, Lord Patel, made a point about training. Children with complex health needs must be supported, and school staff have an important role to play. It is right that they look to health bodies for training to do it properly, and guidance will address this. The Department of Health is working to implement the vision set out in Getting it Right for Children, Young People and Families: Maximising the contribution of the School Nursing Team: Vision and Call to Action. We are working with it as we develop the statutory guidance.
The noble Lord also made points about children suffering from cancer. Cancer is a medical condition and will be covered by the duty and guidance. We will work with stakeholders and would welcome the advice of the noble Lord to ensure that we have guidance which supports that.
My noble friend Lady Brinton asked about websites in schools. My school has a website called “Health Matters”, which is run by the nurse. It is excellent, and I would be happy to discuss it further with my noble friend. It is an example of best practice that we may want to advertise to other schools.
The noble Lord, Lord Ramsbotham, asked who is the Minister for Child Development. Improving outcomes for children is a key concern of the Secretary of State for Education but, as the Bill stresses, we need a joined-up system across government. That is why the Bill includes new duties for local authorities to plan and commission services for children and young people with SEN.
My department has been working closely with other departments to develop the Bill, the code of practice and regulations, but I agree that it is important that we ensure that, when enacted, the Bill is properly executed and that we do not just pass the Bill, retire to our bunkers and hope for the best. We must focus closely on its implementation.
I would like to clarify a point I made to the noble Lord, Lord Storey, about whether the legislation will apply to free schools and academies. It will, but early years are covered separately by the EYFS.
In view of the points I have made and the amendment we have tabled, I hope the noble Lord will withdraw his amendment.
Looking at my Amendment 223 and the government amendment—I am very pleased with it—an omission is the NHS. My amendment places a duty on NHS bodies to co-operate with school governing bodies; the government amendment does not. I want to avoid coming back on this on Report. We are now so close to getting this. I do not want to find that the guidance is great and it all works fine, but that it all falls over because there are problems between the NHS and schools. Is the Minister prepared to facilitate a discussion between the NHS, the Department of Health and representatives here and elsewhere before Report to close that point? It would be wonderful.
I am happy to stimulate that discussion. The guidance will make clear our expectation that schools, local authorities and health professions work together in the interests of the child. That is essential. I am happy to discuss this further with the noble Lord.
My Lords, this has been quite a long debate. We have been going for nearly a couple of hours. It has been a very wide-ranging debate. I have not totted up the number of amendments that have been spoken to, but it seems to be 10 or a dozen. I am sure that at this advanced stage in the Committee’s deliberations this afternoon, your Lordships would not want me to make a full response on all the amendments that have been spoken to and to which the Minister has responded. I am not quite sure whether that is my role or whether I should simply respond to my own amendment, although I will not do even that in any detail. A lot of observations have been made and the Minister has responded. I believe that we all will want to read what everyone has said and what the Minister said in his response to this wide-ranging debate. Then we will know to what extent we want to focus on issues on Report. Certainly, a great many issues have been raised and I am sure that we will wish to return to some of them after having read and reflected on this debate. Having said that, I beg leave to withdraw my amendment.
Amendment 65B withdrawn.
65C: Clause 19, page 18, line 30, at end insert—
“( ) the distinction between children for whom parents have some legal responsibility and young adults who must be supported to participate as fully as possible in their own right, in decisions relating to the exercise of the function concerned.”
It is me again so soon. Amendment 65C is the only amendment in this group, which means that I should be able to speak to it somewhat more briefly. The amendment is about the rights of disabled young adults. In using the term “disabled people”, I include those with SEN. Referring to disabled people will help to anchor the notion that the Bill, as we discussed as regards the previous group, should be about disabled people without SEN as well as those with SEN.
The Bill does not clearly distinguish between the rights of children and those of young adults. As the age range covered by the Bill goes from birth to 25, the rights of young adults need to be clearly differentiated. Parental responsibility for decision-making is in place until the age of 18. While that is subject to some flexibility in certain areas, such as consent to medical treatment and Gillick competency, the position is different from that relating to those aged more than 18 who have their own rights and responsibilities, and where parents do not have a specific legal role unless the young person lacks competency.
I am concerned that the Bill does not make this distinction clearly enough. Therefore, it has the potential to blur the right of young, disabled adults aged more than 18 to be involved in decisions about their own education. Amendment 65C makes clear that disabled young people must be consulted and involved in their own right, and supported to participate as fully as possible in the process. Other young people would not expect decisions about their future to be made for them, so nor should this be the case for disabled young people. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Low, for tabling this amendment. The SEN provisions bestow important new rights on young people—that is, those over compulsory school age—for the first time and the noble Lord is right to draw our attention to the distinction that we are making here.
I assure the noble Lord that the Bill already makes the distinction between children in relation to whom decisions are made by their parents and young people who make those decisions themselves. A local authority would be in breach of its duties if it failed to make such a distinction. Clause 27 requires local authorities to consult young people when it reviews its special educational provision and social care provision. Regulation 4 of the local offer regulations is very clear that local authorities must consult with young people directly over the local offer. That may be an implementation challenge for many local authorities but it does not require a change to legislation. For young people with education, health and care plans, which may be particularly relevant to what the noble Lord has just raised, it is they, not their parents, who must be consulted about their assessment and plans.
It would be impossible for a local authority to fulfil its statutory duties under these clauses without having due regard to the distinction between children and young people. The draft code is also very clear on this point: paragraph 3.2 says:
“Where there is a conflict of interests between the young person and the parent, it is the view of the young person that prevails”.
Parents are not ruled out, of course; they can still support and help a young person in whatever way the young person wants them to. Chapter 3.2 of the draft code acknowledges that,
“some young people will need support from a skilled advocate to ensure that their views are heard and acknowledged”,
and Chapter 3.3 says it is clear that,
“staff working directly with young people should be trained to support them and work in partnership with them, enabling them to participate fully in decisions about the outcomes they wish to achieve”.
I hope that this reassures the noble Lord, and I urge him to withdraw his amendment.
My Lords, there seems to be a good deal in the Minister’s response that should potentially provide quite a bit of reassurance. I want to read it, but I certainly do not intend to argue the toss about it or prolong the debate at this stage. I am happy to beg leave to withdraw my amendment.
Amendment 65C withdrawn.
65D: Clause 19, page 18, line 30, at end insert—
“( ) the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children.”
My Lords, I shall also speak in support of Amendment 157B, which was tabled by the noble Baroness, Lady Howe, and is a slightly rejigged version of Amendment 157A, which is somewhat improved, at the suggestion of the DfE, by putting the inserted words at the end of Clause 39(4) rather than at the beginning. I also added my name to the noble Baroness’s Amendment 219, but I shall not say anything about that, except to signify my support because there will not really be time, and in any case I have to leave her something to talk about.
Amendment 65D enshrines a recommendation of the Joint Committee on Human Rights. Under the UN Convention on the Rights of Persons with Disabilities, states undertake to,
“ensure an inclusive education system at all levels”,
and are required to ensure that:
“Persons with disabilities can access an inclusive … primary … and secondary education on an equal basis with others in the communities in which they live”.
One of the principal obligations undertaken by states under the convention is:
“To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the … Convention”.
In relation to the right to education, states are also under an obligation to,
“take measures … with a view to achieving progressively the full realization of these rights”.
When the UK ratified the convention—in 2009, I think it was—it entered a reservation and interpretive declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of progressive realisation of the right to inclusive education. Clause 33 retains the current statutory presumption in favour of education in a mainstream setting, but this has been the subject of continued debate and considerable litigation. The frequency of such litigation about the presumption in favour of mainstream education suggests that the current state of the law and guidance leaves considerable scope for uncertainty. If scope for such uncertainty exists, the UK’s obligation under the UN convention to take steps to increase access to mainstream education for people with disabilities might require the Government to remove the uncertainty by clarifying the law and/or the relevant guidance.
The Government believe that the provisions in the Bill are compatible with the UN convention. However, they accept that the current guidance on inclusion contained in the DfE guidance Inclusive Schooling is not well known. They promised in their response to the JCHR to include such guidance in the new SEN code of practice. I am pleased to say that that has now been done in the latest version of the code of practice, which was issued for consultation on 4 October, although I am sorry to say that the consensus seems to be that it lacks the practical detail that the JCHR was looking for.
The Government do not believe that it is necessary to include increasing access to mainstream provision in the general principles in Clause 19 in the way that this amendment would provide for. However, as the Bill stands, inclusion is not referred to anywhere in the legislation. The Minister told the Public Bill Committee in the other place that this was deliberate because the Government want to move away from what Robert Buckland MP described in Committee as,
“the rather sterile binary debate about inclusion versus specialism”.—[Official Report, Commons, Children and Families Bill Committee, 21/3/13; col. 462.]
In the view of the JCHR, however, the commitment to increase access to mainstream schools and staff, being the subject of an international treaty obligation that the Government accept, should be expressly stated in the general principles clause at the beginning of Part 3. It considered that a form of words could be found for giving expression to such a general principle that avoided the crude binary distinction between inclusion and specialism that the Government seek to avoid. It recommends that Clause 19 should be amended to include an additional general principle that follows closely the language of the UK’s interpretive declaration to Article 24 of the UN convention. The purpose of Amendment 65D is to give effect to this recommendation. The JCHR concluded at paragraph 66 of its report:
“Under Article 4(1)(a) of the Disabilities Convention the UK has undertaken to adopt all appropriate legislative measures for the implementation of the rights recognised in the Convention. The inclusion of such a general principle on the face of the Bill would in our view be an appropriate legislative measure for the implementation of the right to inclusive education in Article 24 of the Convention”.
I turn to Amendment 157B. It can probably be understood best if we look at the background in the current legislation. Sections 316 and 316A of the Education Act 1996 which, until the Bill is passed, is the codified legislative framework governing special education, provide a strong qualified right to inclusion in mainstream education where the parents want it. That can be defeated in relation to mainstream as a type of provision only if the placement of the child would be incompatible with the efficient education of other children and there are no reasonable steps that can be taken to remove that incompatibility at all schools in the local authority’s area.
Likewise, in relation to a particular school, the presumption in favour of mainstream falls away only if the placement of the child would be incompatible with the efficient education of other children and there are no reasonable steps that can be taken to remove that incompatibility in that school. However, that does not necessarily get the child a right to a particular school place. That is still dealt with for maintained schools under paragraph 3(3) of Schedule 27 only. A request for a maintained school place, mainstream or special, must be complied with unless that would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or if it would be incompatible with the education of other children or the efficient use of resources.
However, there is no equivalent of the “reasonable steps” obligation that exists in relation to mainstream under the Education Act or arising under the Equality Act. That can lead to each school arguing that it would be incompatible in the Schedule 27 sense. Overall, that can greatly cut down the ability of a parent in that situation to get the particular mainstream school that they want for their child, even if in theory they can establish a right to mainstream as a type. In some cases, it can even leave children seemingly without any school place at all. Thus, in theory there is a right to a mainstream school, but in practice no school may be willing to take the child.
The Bill helpfully rationalises the legislative framework that I have just described by bringing the interlocking provisions of the Education Act 1996 together in Clause 39 and extending them to mainstream academies. Unfortunately, however, what I have called the “reasonable steps” obligation, which provides that a parent’s request can be resisted only when there are no reasonable steps that can be taken to remove the objections to the child’s admission on specified grounds, has been completely removed. In my view, that is not the right way to achieve consistency between Sections 316 and 316A and the Schedule 27 limb of the Education Act 1996. The better way in which to achieve that consistency would be to provide that the “reasonable steps” obligation should apply to both the unsuitability and the incompatibility limbs of Article 39(4). The amendment would achieve that. It would strengthen the ability of parents to get not merely a mainstream place but also the mainstream place of their preference. I beg to move.
Baroness Howe of Idlicote: My Lords, as the Committee will have heard, even the noble Lord, Lord Low, has grown a little exhausted from the amount of speaking that he has had to do. I am sure that he is pleased to hand over to me for the final bit of this group, which has been reconstructed in a very impressive way. My Amendment 219 is as follows:
“Insert the following new Clause … Inclusive and accessible education, health and social care provision … In exercising a function under Part 3, a local authority and NHS bodies in England must promote and secure inclusive and accessible education, health and social care provision to support children, young people and their families … Regulations will set out requirements on an authority and its partner NHS commissioning bodies to promote and secure inclusive and accessible education, health and social care provision in its local area, in particular through … the planning … the design … the commissioning or funding … the delivery; and … the evaluation, of such services”.
It seeks to put in place a clear and unambiguous framework to ensure that local authorities and NHS partners deliver inclusive and accessible health and social care provision. The amendment was carefully drafted to ensure that local authorities and the NHS have to think proactively about inclusion and accessibility as a fully integrated part of the commissioning and delivery process.
This amendment also ensures that having considered the best shape of inclusive, accessible services for disabled children and young people, local authorities and the NHS should then secure this provision. Existing provision for disabled people is marred by the fact that services are rarely designed to meet the needs of disabled people and young children from the start. Rather, provision is retrofitted for access for disabled people, often resulting in badly delivered or compromised services. If services are poorly designed or continually adjusted, it prevents them securing the outcome that would most benefit disabled children and young people. Most importantly, this amendment is comprehensive; it seeks to embed the principle of access and inclusion throughout local authorities and NHS processes in England from planning to commissioning to delivery and, finally, ensures that such services are robustly evaluated to drive improvements consistently.
My Lords, I rise to speak in support of Amendment 219, in the names of the noble Baronesses, Lady Howe and Lady Wilkins, and the noble Lord, Lord Low. The noble Baroness, Lady Howe, has already said that this amendment would ensure that local authorities and their partner NHS commissioning bodies promote and secure inclusive and accessible education, health and social care provision and that they consider disability at every stage, be it the planning, design, commissioning, funding, delivery or evaluation of such services.
I am very pleased to say that some of this is already in process. Suffolk County Council is already leading the way in this area and is working with the disability charity Scope to provide Activities Unlimited, a brokerage service which works closely with parents and other agencies to encourage mainstream services to be more inclusive and accessible. Activities Unlimited has recognised that there is significant demand for services from families with disabled children who have personal budgets to spend which is not currently being tapped into. Activities Unlimited works closely with parents and other agencies, not only in commissioning services and identifying new high quality service providers, but involving them in the evaluation process as well, using feedback from families to support improvements to services and signposting families towards the most appropriate support. When local services are inadequate or where uptake is low, Activities Unlimited signals a need for improvement, shifts resources towards more effective services and eventually withdraws public support from underperforming services.
Through forcing services to work in a more competitive economy, a better quality of mainstream provision is ensured whereby consumer demand supports the best quality providers. Through increasing provision for disabled children and young people, families have a genuine choice between providers. This has produced real outcomes for both families and the local authority. By increasing the availability of local inclusive and accessible services, such as youth clubs, swimming pools and play centres for families across Suffolk, the council has not had to provide any expensive emergency respite care for disabled children. Indeed, this is such a successful service that Scope is going to be working with Blackpool and Leeds to set up a comparable brokerage service.
I am keen to emphasise that this amendment is not designed to place even more burdens on local authorities that already face many significant challenges in this economic climate. Recognising the changing role of local authorities, this amendment does not place on councils a duty to provide inclusive and accessible services but rather places on them a duty to promote and secure such services. The amendment provides the much needed catalyst for local agencies—both statutory bodies and those in the voluntary sector—to improve the quality and provision of mainstream services for families with disabled children.
I ask the Minister at the very least to include this duty in the code of practice accompanying the Bill and to ensure that the necessary measures are put in place so that the significant demand from families with disabled children for inclusive and accessible services is met.
I rise to speak in support of Amendments 65D and 219. As the noble Lord, Lord Low, said, Amendment 65D was a recommendation of the Joint Committee on Human Rights. I am very grateful to him for moving it so ably. There are really no more arguments to put, because he put all the key arguments. Does the Minister accept that the amendment avoids the crude binary distinction between inclusion and specialism that the Government understandably wish to avoid? If he does, will he accept the recommendation? If he does not accept it, is there some other wording that he would accept that would enable the principle of inclusion to be put in the Bill? As the noble Lord, Lord Low, said, it is an important principle.
The Joint Committee on Human Rights also gave its support to Amendment 219. It is a broader amendment than the amendment recommended by the Joint Committee. UNICEF’s The State of the World’s Children 2013: Children with Disabilities report emphasises that an accessible environment is essential if children with disabilities are to enjoy their right to participate in the community. The right to participate in the community is fundamental to citizenship. I am sure every noble Lord in this Room believes in the equal and full citizenship of disabled children. Therefore, I hope the Government will be able to accept this amendment.
My Lords, I declare an interest as a trustee of UNICEF. I, too, am delighted to be speaking in favour of Amendment 219, which can bring about the transformation of education—much of our emphasis today has been on education—and, importantly, health and social care services, which is needed to make them truly inclusive for families with disabled children.
I strongly believe that the starting point for looking at the reforms to SEN in this Bill should be that a disabled child has just as much right as every other child to be involved in their community, to be visible in their own community and to have the same opportunities as their non-disabled peers. Despite some very welcome reforms to support for disabled children and children with SEN in the Bill, I fear that the right of disabled children to participate in their community will not be sufficiently realised through the Bill. This concern is shared by UNICEF and the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, noted.
There is compelling evidence that families with disabled children currently encounter huge difficulties in accessing support in their community. Indeed, Scope’s recent Keep Us Close report found that a mere 14% of families with disabled children said they could get all the support they needed in their local community. Therefore families which already face immense challenges on a daily basis more often than not encounter a closed door when it comes to ensuring that their children enjoy the same opportunities as other children.
The Government previously stated in Committee on the Bill in the other place that there are already duties in place to ensure that appropriate provision is made for children and young people with special educational needs and disabled children and their families. However, such duties are clearly failing to achieve their intended purpose. Although the Equality Act 2010 requires organisations to be proactive and responsive in ensuring that the public services that they provide are inclusive and accessible, the reality is that services for disabled children are often developed, planned and commissioned separately from other community services, and consequently miss more strategic opportunities to create joined-up support and a more inclusive society. Parents are confronted with local activities and services that are inaccessible or a lack of support services to enable disabled children to join in with local activities such as youth groups or even simply playing in the park with their peers.
The Government need to set out a clear strategic direction and create a strong imperative for local authorities to focus on accessibility of local services, and that is exactly what the amendment would do. Although a number of local authorities undertake excellent work alongside families with disabled children to ensure that their needs are met by mainstream services—notably Suffolk, Leeds and Blackpool—not all local authorities are as progressive. Many local authorities and voluntary organisations want to provide more inclusive and accessible services, and the amendment would help to give them a chance to do that.
Such a duty on local authorities and NHS bodies would not have to be burdensome. Disabled children and those with SEN more often than not do not need hugely different or specialist services. With small changes to an existing service, we can make them accessible and inclusive for disabled children. It is not about providing more and separate services, but, rather, targeting current provision in the most effective way.
Indeed, making services accessible and inclusive for disabled children is just as much about changing attitudes as it is about making physical adjustments. It is about breaking down many of the fears and misconceptions about what inclusion means and ensuring that services see children simply as the individuals who they are—forcing services to think more creatively about how they can meet the needs of families with disabled children and allow the 1.7 million disabled children and children with SEN to reach their potential.
Briefly, I support my noble friends Lady Howe and Lord Low on Amendment 219. I commend to the Minister, in forming the regulations, an enormous number of examples of good practice around the country which should be taken note of, as the noble Baroness, Lady Brinton, said. Some of them were drawn to attention in the report of my committee on the links between social disadvantage and speech, language and communication needs. We were fascinated that, for example, in Walsall, assessments were made of children in secondary schools. Nowhere else in the country could we find that being done in the same way. In Stoke, they were training lollipop men and dinner ladies to identify conditions in children which they might bring to the attention of the authorities so that they could be followed up, based on the fact that no longer is child development a requirement in teacher education, which I find an extraordinary state of affairs.
I speak here on behalf of a coalition called the Communication Trust, which would be more than happy to share all that it has learnt with the Minister and the officials responsible for drawing up the regulations to make certain that they incorporate as much as possible of what is already known.
I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, for tabling their amendments on inclusive provision. I had the great pleasure of meeting the noble Lord, Lord Low, recently. I was grateful for his time and singularly impressed by his breadth of knowledge and wisdom in this area. As I said before, I am indebted to noble Lords for their help in developing my understanding.
Thankfully, we have come a long way since 1970, when some children were written off as uneducable. It was in the 1970s that the noble Baroness, Lady Warnock, and her committee of inquiry published their report. As I have already said, we owe a huge debt of gratitude to the noble Baroness and her committee, as their work led to the Education Act 1981 and the special educational needs framework, which did so much to improve the identification of and support for children and young people with SEN, particularly in the mainstream. Subsequent changes were made to that framework through the Special Education Needs and Disability Act 2001, which applied disability discrimination law to education and strengthened the right to a mainstream education where parents want it.
In 2012 this Government included the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty for schools under the Equality Act 2010. With the Bill, the Government are seeking to build on what has gone before and create a new framework to improve support for children and young people and increase choice for parents and young people. All the amendments in this group are concerned in some way with the principle of inclusion. The debate today has demonstrated that while we all share a common desire to improve provision for children and young people, we may differ on how that objective is best achieved. I hope that we can make much of our common ground and shared objectives as the Bill progresses.
I shall speak first to Amendment 65D, in the name of the noble Lord, Lord Low. I know that this is an area that was raised by the Joint Commission on Human Rights in its consideration of the Bill. This Government have taken action in a number of ways to support the objective sought by this amendment and to meet our obligations under the UN convention, which we take very seriously. I welcome the opportunity to set these out. In doing so, I hope to be able to persuade your Lordships of the case for giving effect to this principle in a range of ways other than by amending Clause 19. The Bill maintains the general principle of inclusion in a number of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need. It also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges, and seeks to improve the options available to them.
Beyond the Bill, as I have mentioned, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people; to promote equality of opportunity; to plan to increase access over time; and to make reasonable adjustments to their policy and practice. I want to make it clear that nothing in the Bill replaces or overrides those provisions. Indeed, we have drawn attention to those duties and set out examples of the reasonable steps schools and colleges can take to include children and young people in mainstream settings in Section 7(11) of the draft SEN code of practice. Chapter 6 of the draft code provides strong guidance to all mainstream early years settings, schools and colleges to ensure they have high expectations for all their pupils and students, provide high-quality teaching and have clear systems for identifying those who need additional support and providing that support as quickly as possible.
We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and recognise the key role played by the SENCO in this and other ways. A number of steps are being taken to support schools and colleges in developing their staff. The teaching schools programme is supporting the development of expertise in supporting children with SEN. We are also providing bursaries of up to £9,000 to high-quality graduates undertaking training programmes with a focus on teaching learners with SEN and £1 million in bursaries to support existing further education teachers in undertaking training to develop their specialist skills and knowledge to support those with SEN.
Following recommendations from the Rose review 3,200 teachers have obtained specialist qualifications in dyslexia and since 2009 10,000 new SENCOs have been funded through the master’s-level National Award for SEN Co-ordination with a further 800 places on this award in 2013-14. We worked with the Training and Development Agency—now the National College for Teaching and Learning—to develop specialist resources for initial teacher training and new advanced-level online modules on areas including dyslexia, autism and speech and language needs, to enhance teachers’ knowledge, understanding and skills. We have also funded the National Association for Special Educational Needs to deliver additional training in SEN for established SENCOs; this has now offered training to around 5,000 SENCOs.
We have also awarded contracts to a number of sector specialists including the Autism Trust, Communications Trust—to which the noble Lord, Lord Ramsbotham referred—Dyslexia-SpLD Trust and National Sensory Impairment Partnership to provide information and advice to schools and teachers. We have also provided resources in a number of other areas and I will be very happy to write to the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, with further details. Taken together, I believe these measures help mainstream schools to develop an effective approach to inclusion and help to equip teaching staff with the skills to support a broad range of pupils and students.
Amendment 157B from the noble Lord, Lord Low, and the noble Baroness, Lady Howe, applies to Clause 39 where a parent or young person asks for a particular school or post-16 institution to be named in an EHC plan. Noble Lords have made it clear that the purpose of this amendment is to require local authorities, schools and colleges to show there are no reasonable steps that they could take to prevent the parent’s or young person’s request being ruled out under the exceptions set out in Clause 39(4). They referred in the debate to the duties in the Equality Act 2010 to make reasonable adjustments for disabled people.
I want to make some important principles clear. First, parents should be able to request a particular school or post-16 institution and have their request met as far as possible. Secondly, children and young people should be educated at a mainstream school or college unless the parents or the young person themselves wish for other provision and so long as the education of others is safeguarded. The first is a general principle that extends beyond Part 3 of this Bill. However, children and young people with EHC plans have a stronger right than others. This is reflected in Clause 39, which says that a local authority must name the parent’s or young person’s preferred school or college unless it would be,
“unsuitable for the age, ability, aptitude or special educational needs of the child or young person … or … incompatible with provision of efficient education for others”,
or incompatible with the efficient use of resources. Furthermore, I emphasise that nothing in this Bill overrides or replaces the duties schools and colleges have under the Equality Act 2010 to make reasonable adjustments to avoid putting disabled children and young people at a substantial disadvantage because of their disability.
Clause 33 relates to the second of these principles and applies in cases where it is not be possible for a parent’s or young person’s requested school or college to be named in their plan or they have not requested a particular institution. As noble Lords have pointed out, it requires local authorities, schools and post-16 institutions to consider reasonable steps. That is solely to show that there are no reasonable steps that could be taken to prevent a child or young person’s placement in a mainstream setting from being incompatible with the efficient education of others. Amendment 157B would apply the reasonable steps provision to all the exceptions in Clause 39 and I am not convinced that this would be appropriate. I will be happy to discuss the issues further with the noble Lord, Lord Low, and the noble Baroness, Lady Howe, outside the Room but in the light of what I have said I urge the noble Lord to withdraw his amendment.
Finally, I thank the noble Baronesses, Lady Howe and Lady Wilkins, and the noble Lord, Lord Low, for tabling Amendment 219. This would enable regulations to be made setting out in detail how local authorities and NHS bodies should go about providing inclusive and accessible education, health and social care services. While the Government agree that such services should be accessible and, as far as possible, inclusive, we believe that the best approach is not to set out clear but broad expectations in legislation but to leave local areas and providers to work out how best to meet those expectations.
Expectations for accessibility and inclusiveness are clear. Local authorities, health commissioning bodies and providers must all pay proper regard to and comply with the provisions of the Equality Act 2010, including when carrying out their new joint commissioning functions. This Bill goes even further, setting expectations on education providers to make their provision inclusive, by using their “best endeavours”—a very strong obligation—to meet the SEN of all their pupils. Health commissioners are similarly under a very clear duty in the NHS Act 2006 to reduce inequalities in access to services between people and inequalities in the outcomes derived from those services. These provisions will be supported by the statutory SEN code of practice, which sets out more detail on practice in terms of commissioning and delivering services. We believe that this is the right approach.
On the point made by the noble Baroness, Lady Lister, about presumption, the presumption of mainstream education already puts the principle of inclusion in the Bill. The code of practice subsumes the currently separate inclusive schooling guidance, and I am of course happy to liaise with noble Lords on the wording of the code.
Before the Minister moves on, I would be grateful if he could answer my question whether he accepts that the recommendation from the JCHR, as encapsulated in Amendment 65D, avoids the false binary between inclusion and specialism. To be honest, I am still not really clear why there is so much resistance to putting the principle of exclusion explicitly in the Bill.
We do not accept it. We feel that we deal with it in the provisions that I have mentioned. I will be happy to discuss this further.
Inclusive and accessible provision is clearly an issue that many noble Lords feel strongly about and have genuine concerns. I hope that I have explained how the Government are approaching the issue and the steps that we are taking. As I said at the beginning of my response, I welcome the opportunity to meet noble Lords and will be happy to do so further on this point. In view of what I have said, though, I would be grateful if the noble Lord could withdraw his amendments.
I am grateful to all those who have spoken unanimously in support of these amendments. I am particularly grateful to the Minister for his painstaking and comprehensive response. However, I am slightly reminded of a meeting that we had with DfE officials, before the Minister’s time, when after the meeting I said to someone, “How do you think that went?”, and he said, “Well, I think they agreed with everything we said provided it didn’t mean they had to change the Bill”.
I acknowledge straight away that we are in the same place, including the Minister and those on this side of the Table, in our support for the principle of inclusion, and that is a good thing. The Minister ran through a large number of measures that the Government are taking in support of the principle of inclusion, some of them legal and some of them other forms of support. I am inclined to regard them as what you might call “soft” measures—soft support for inclusion. However, the Minister wanted to steer away from anchoring the principle too firmly in hard law in the Bill. We were not seeking law that was too hard; the JCHR’s amendment is couched in terms of general principle and is not very coercive.
Amendment 157B simply seeks to achieve a common approach between the unsuitability limbs and the incompatibility limb by applying the “reasonable steps” obligation in relation to both of them. It is incontestable that both ought to be approached in the same way; it does not make sense to have a “reasonable steps” operation in relation to one but not the other. That is the position at the moment and we have an opportunity to put it right. There cannot be an objection to having a “reasonable steps” obligation at all in the legislation because it is there at the moment. What is wrong with the legislation is it is there in relation to one ground of objection but not the other; it seems only sensible to apply it to both. Then there is Amendment 219, which, as we have heard, is more wide-ranging.
I should not overlook the fact that the Minister made some reference to anchoring the principle of inclusion in legal form in the legislation, but it took the form of schools using their best endeavours. My heart sank a bit at that point, because it seemed to take us back to the Education Act 1981, which made the first tentative steps in legislation towards enshrining the principle of inclusion in legislation. There it was enshrined in terms of schools and authorities using their best endeavours. As the Minister made clear, we have moved on a bit since then, so to offer a best endeavours provision as a consolation prize for us in tabling these amendments is a bit disappointing.
However, I am grateful to the Minister for his offer to meet us to have discussions on these issues before Report. I am sure that we are all in the same place in wanting some clear recognition of inclusion in the legislation, and I hope that by a process of discussion we can come to agreement on a form in which to enshrine that in the legislation. On that basis, I am happy to beg leave to withdraw the amendment this evening.
Amendment 65D withdrawn.
66: Clause 19, page 18, line 30, at end insert—
“( ) The functions to which this section relates include the functions under sections 32, 36, 38 and 44.”
Clause 19 sets out the principles for involving children and young people with special educational needs in decision-making. That is very welcome. However, I am concerned that the Government’s intentions are not reflected consistently throughout Part 3. Clauses 32, 36, 38 and 44 in particular exclude children under the age of 16 from participating in decisions. I seek assurance from the Minister that Clause 19 applies to all of Part 3, including these clauses. If the Government’s intention is to involve children under 16 in decision-making about their own lives, I see no reason why children should not be included in those clauses.
In another place, the Minister stressed the importance of Clauses 32, 36, 38 and 44, referring only to decision-makers—that is, young people over 16 or parents. However, these amendments would not give under-16s decision-making responsibilities; they would simply enable children to receive information and participate in processes.
The Government acknowledge, in Clause 19, the importance of providing information and support to children to ensure that they can participate as fully in decisions about their own education and care. Furthermore, this approach prepares children for when they turn 16 and the primary responsibility for decision-making rests with them. The Government’s reasoning regarding decision-making is also inconsistent, as other provisions in Part 3 explicitly refer to the involvement of children as well as young people and parents—for example, in Clause 30. I am concerned that the legislation as it stands will cause confusion for local authorities regarding whether and how they should inform and involve under-16s in decisions about their education, health and care needs. These amendments would provide clarity.
Under the UN Convention on the Rights of the Child, all children have the right to have a say in decisions that affect them and have their views given due weight in accordance with their age and maturity. The UN Convention on the Rights of Persons with Disabilities also states that disabled children should be provided with disability and age-appropriate assistance to realise the right to be involved in decisions that affect them—Article 7. Evidence shows that, despite these rights, disabled children are often excluded from decision-making processes or face barriers to having their voices heard. Research from the Government’s own pathfinder programme shows extremely low levels of children’s participation in decision-making.
I hope that the Minister will accept these amendments, which would ensure that all children could participate fully and effectively in decisions regarding their education, health and care needs. I beg to move.
My Lords, I support the amendments of the noble Lord, Lord Storey, in this group. They follow the original theme of the noble Lord, Lord Low. The amendment is intended simply to ensure that children are consulted about issues that affect them—in other words, the importance of listening to the voice of the child. I cannot help feeling that the amendments should be unnecessary, given the Government's stated position on the rights of the child. The coalition Government stated in December 2010 that they would give due consideration to the Convention on the Rights of the Child when developing new legislation and policy, while the Government's policy for youth supports the importance of involving children and young people, including those under 16, in decision-making processes. As the noble Lord, Lord Storey, said, the UN Convention on the Rights of Persons with Disabilities states that disabled children should be provided with assistance to help them participate in decision-making.
I turn briefly to an interesting global strategy on children’s commissioners published recently by UNICEF. I should declare an interest as a trustee of UNICEF. There are two pithy quotations. The first is:
“Children’s participation in decisions that affect them is beneficial to both children and society. It helps strengthen children’s self-esteem and builds their capacity to contribute”.
The second quotation is:
“Participation is also a critical channel for accountability of decision makers at the local and national level”.
How much does that apply to children with special needs?
Successive Governments have become much better at seeking to involve children and young people in decisions that affect them. I am concerned about clauses, mentioned a moment ago by the noble Lord, Lord Storey, that seem to exclude younger children from participating in decisions about special educational needs. We cannot make legislation involving children unless it is child-proofed. I shall not go through all the clauses where younger children are excluded from consultation—the noble Lord, Lord Storey, has already done that—but I want to make a few supplementary points. In a recent inquiry by the All-Party Parliamentary Group on Children, which I chair, children were very vocal about their wish to be consulted, whether in education, social care, medical care or the legal system.
Professionals involved in that inquiry who worked with children recognised the value of contributions from children and young people, including those with special educational needs. I have heard people say that children under 16, because of a lack of maturity or disability, cannot be capable of having a say in decisions. I cannot agree. As parents, grandparents or relatives of children, we have probably all experienced insights from children that have enabled us to make better decisions about their well-being. Children do not have to talk or write to contribute their views. I know of several initiatives that, in order to gain the views of children, have involved drawing, role-play or other non-verbal methods. Again, I think that the Government have not applied their commitment to listening to children in some clauses of the Bill. I hope that they will think again and remedy that.
I, too, support the amendments tabled by the noble Lord, Lord Storey, and supported by my noble friend Lady Massey. I shall also speak to our Amendments 120 to 122. Amendments 120 and 122 are similar to the amendments tabled by the noble Lord, Lord Storey: they insert the word “child” or “children” into Clause 32 but, as noble Lords have said, there are other clauses where children seem to be expressly excluded. Amendment 121 would extend the scope of the clause to ensure that information was provided to young people and their parents in a wide variety of ways, as listed in the amendment.
The Minister in the other place said that there was no need specifically to refer to children because the term “young people” includes children. The main issue here, which the Minister has to address in his or her reply, is that the Bill is completely inconsistent on this point. Clauses 32, 36 and 38 refer only to parents and young people. Clause 33 talks about children and young people in its title and throughout. The Minister may say, “Ah yes, but that’s not intentional and the code of practice makes it clear”. Unfortunately, the code of practice does not make it clear because the code is also inconsistent. It is a bit more consistent than the Bill because it talks more often about children and young people than the Bill, which chops and changes. Still, though, certain sections, which are not specifically related to people over the age of 16, talk about the engagement of young people, not children and young people.
So there is complete inconsistency throughout the wording of the Bill and the code of practice. If that is not intended, it should be corrected. If the Bill is enacted as it is, a local authority provider reading that legislation could reasonably assume that it was an intended distinction—a distinction that we have all said we would not support.
A number of people, including my noble friend Lady Massey and myself, have had a lot of experience in engaging quite young children and in producing child-friendly material that young children, including those with a learning disability, can engage with. You can get views and experiences from them that are very meaningful to service providers, and they should be captured. The Bill and the code of practice should be very clear that throughout its provisions it is children, young people and parents whose engagement we want to seek in the provisions, the review of the provisions, the experience of the provisions, the monitoring and so on.
My Lords, I support the noble Baroness, Lady Hughes, and those who have spoken to these amendments about the inclusion of children. I simply hope that it is a mistake, a slip of the pen, and that “children and young people” was intended and can be put in. We now have a great deal of experience of engaging young people. Certainly, CAFCASS has done a huge amount of work in working with very young children and understanding their wishes and feelings. The Children’s Rights Director spent a long time talking to young people and young children about how decisions were made about them. It is amazing how very young children feel very deprived of having a part to play in their own lives when they have not been included.
A lot of research shows that not including children in decisions has harmful effects. We know from similar research into divorce that young children who are taken along and understand what is happening have less trauma later than those who suddenly find out that it is happening. There is similar research into the effect of understanding on children. I hope that this is a slip of the pen and that we will find that both are included.
I will not keep the Committee for long. As my name is attached to a number of amendments in this group, I want to emphasise what the noble Baroness, Lady Howarth, has said so ably. It is crucial that from the moment at which a child can speak, their views are sought. To an extent, that may depend on how much value can be given to what they say and on their age. Nevertheless, it is important to hear what they have to say. As you get older and have great-grandchildren as well as grandchildren, the more you are aware of exactly what you are learning from their experiences, which can change your views quite considerably. I very much support the noble Baroness, Lady Massey.
My Lords, I thank my noble friend Lord Storey for his welcome of Clause 19, which was echoed by other Members of the Committee in this mini-debate. We fully understand the intention behind the amendments—the desire to ensure that the views of the child and his or her parent or carer, or the young person, are fully taken into account; that they are informed and can participate in making decisions, with the information and support that they need to make those decisions; and that the child or young person is supported to achieve the best possible outcomes.
I assure noble Lords, particularly my noble friend, that Clause 19 enshrines the principle that children and young people should be involved in decisions about their lives. I hope it reassures him and other noble Lords that this applies throughout Part 3, including to the clauses on assessment and planning. This is reflected in the draft code of practice, which sets out in Chapter 7.3 that in determining whether an assessment is necessary, the views, wishes and feelings of the child should be taken into account.
I point my noble friend Lord Storey and the noble Baroness, Lady Massey, to Chapter 7.4 of the code of practice, where we are explicit in setting out that:
“Children, young people and their parents are key partners in the process, and their views on how, when and to what extent they would like to engage must be taken into account. They should feel confident that they will be listened to and their opinions will be valued”.
However, I hear what noble Lords have said and I heard what the noble Baroness, Lady Hughes, said, about any inconsistencies. I am sure that we can double-check to ensure that what was intended runs through both the Bill and the code of practice.
One would normally expect parents to make decisions on behalf of their children where those children are too young or otherwise unable to make decisions, but we would also expect parents to be discussing these issues with their children and explaining to them what was going on. As I have already said, we wish to engage children, as well as young persons, as fully as we can.
We think it is right that local authorities are formally required to consult the parents of children of compulsory school age while at the same time seeking the views of the child wherever possible. For young people over compulsory school age, the Bill is clear—I hope—that it is the young person to whom consultation and notification should be directed, rather than their parents. This is an important step forward to ensure that young people can take control of the support that they receive. Of course, we recognise that parents and other family members are also likely to continue to be involved in the care of young people with SEN.
I shall briefly address Amendment 121 in the name of the noble Baroness, Lady Hughes, which would place specific requirements on the format of the advice provided to parents and young people. We agree that materials should be in a range of accessible formats but we do not think putting this level of detail in the Bill is the best way to go about it. We take her point that local authorities should have the discretion to produce materials in any format that they deem necessary but our worry would be that if there were a list, as it were, local authorities might focus on that. We understand fully what she is aiming at but nevertheless do not feel that it is something to put in the Bill. We believe that the code of practice is the place where we should set out what is expected in terms of formats. I also assure the noble Baroness—this is built into her amendment, although she did not flag it up—that such information, advice and support must be provided free of charge.
I assure the noble Baroness, Lady Massey, who is a trustee of UNICEF, as was I, that we are interested in looking further at how children can be directly involved, hence we are piloting a right to appeal for children. The pilot will enable us to find out whether we can take further steps towards empowering children in future.
I have received inspiration from behind but unfortunately the inspiration is difficult for me to read. I will endeavour to render this inspiration. The differences in the wording of the Bill are to give clarity where the parent has a decision-making role, so Clause 30 on the local offer covers children and their parents while, for example, decisions about choice of school, such as in Clause 33(2)(a)—then the inspiration stops, I am afraid. I may need to write to clarify that.
I hope that noble Lords will have taken from what I have said that we are very sympathetic to the points that have been made and that my noble friend will be content to withdraw his amendment.
I thank my noble friend for her clear and concise reply. It reassures me. I agree with the noble Baroness, Lady Hughes, that where there are inconsistencies we should make sure that they are clarified and cleared up because where there is confusion, there is sometimes doubt. I beg leave to withdraw the amendment.
Amendment 66 withdrawn.
Debate on whether Clause 19 should stand part of the Bill.
My Lords, I give my noble friend brief warning that I am totally delighted by Clause 19, particularly by Clause 19(a). He will find that I will drop in a couple of amendments at a later stage to make sure that it will allow parents who wish to home educate their children to specify home education as an alternative to school education and will allow a local authority to provide support in that way rather than support having to be delivered by a school or other institution. I take it that this expansion of parental choice will include home educators, not exclude them. I will table an amendment on that in due course.
Clause 19 agreed.
Clause 20: When a child or young person has special educational needs
Amendments 67 to 70 not moved.
70A: Clause 20, page 19, line 8, at end insert—
“( ) A child of compulsory school age who is excluded for a fixed term from school on two occasions within a single school year shall receive an assessment to identify possible learning difficulties within one month of the second fixed-term exclusion.”
I am very grateful to the Minister, but I am extremely concerned about that because this group introduces very serious issues to do with speech, language and communication needs. I cannot promise to be short over this because there is a number of things to say, and I know that a number of noble Lords wish to speak. I am concerned that we should rise and continue when we resume because, as I say, I have serious timing problems.
My Lords, it may help the Committee if I say that it is possible under certain circumstances to finish part way though a group and then resume on the next Committee day. I hope that will not happen, but should we get to 7.45 pm, that may assist.
My Lords, slightly unusually, I shall speak to Amendments 76 and 78 before I speak to Amendment 70A, because Amendment 70A, as it were, is an issue connected with some of the things that I am going to say. I have already mentioned my concern that we are looking at all children and not just the 2.8% who have special educational needs. In saying that, though, I presume that the Government’s aim is to continue the Education Act 1996 and what was said in it. After all, that is where the statements stem from that are now being turned into EHC plans. The Education Act 1996 says:
“A child has ‘special educational needs’ for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him”.
In recent years, a number of us have set out to raise the profile of speech, language and communication needs as a 21st-century scourge. They have crept up on us increasingly because of the lifestyle that is lived in the 21st century—the electronic lifestyle, the parental neglect lifestyle, the lack of communication in families lifestyle, the lack of communication between people lifestyle—and the fact that there are simply appalling figures about people who are identified as having speech, language and communication needs when they start school. I found, for example, when going to do an experiment with speech and language therapists in two young offender institutions, funded by the Helen Hamlyn Trust, that 67% of the young offenders had some form of identifiable speech, language and communication need. They had reached the age of 15 before this was discovered, hence the fact that the conclusion from our studies was that if only that had been identified early, they might not have been in the young offender institution because they would have been able to complete their education. Think of the waste of the numbers who had been excluded or evicted, quite apart from those who had truanted, because of their inability to connect with the education system.
In recent years, we have learnt that successive Governments have made considerable movement on this. I am particularly glad about the early years foundation stage scheme, which has every child assessed at the age of two to see whether there are difficulties and disabilities. During the study that I have already mentioned to the Committee, we were very pleased to take evidence from Northern Ireland, where speech and language therapists are involved in the training of health visitors before they go to carry out that assessment to make certain that those particular needs are identified.
The purpose of Amendments 76 and 78 is to draw attention to the need for such early intervention. If the general intent that I mentioned earlier is what I saw behind Clause 19, particularly Clause 19(d)—namely, that every child should be enabled to be educated to the best of their ability—while early identification is the key to improving the educational outcomes for children and young people with speech, language and communication needs, some of whom will also have other needs, such as physical needs, I would have thought that the educational need to involve themselves in and engage with education should be at the heart of an education Bill, which is what this is.
The speech, language and communication needs can be easily missed or misinterpreted. In fact, it is said that almost 90% of the children who have them also have some degree of literacy difficulty; a high proportion of them end up being excluded. The trouble is that this has gone unidentified, very often for far too long. You even find people getting to secondary school who cannot communicate there, having failed to communicate during primary school. If we are talking about 0 to 25 pathways, we are presumably thinking about the transition from education into employment. I have been very interested to see the identification by employers and others of the problems of speech, language and communication needs with potential employees. So I am very keen to see that speech, language and communication needs are included in the Bill as special educational needs, because without the language and communication you will not have the education anyway.
On the subject of special educational needs, we have been talking a lot about disabilities and other things that impact on people’s educational abilities, but we are talking about education abilities. It was said in the other place that 33% of children arrive at school without the requisite communication and language skills to take part in education. That is a terrible figure, and I suspect that it could be an underestimate. There are factors such as learning delays, and so on, to be taken into account; 1 million, or 10% of all the children in the country, have identified speech, language and communication problems that are not caused by neglect, having English as an additional language or other external factors. In other words, it is an endemic problem. As I say, it is the scourge of the 21st century.
Amendments 76 and 78 would seek to strengthen the words in the legislation. I was horrified to hear my noble friend Lord Low question the term,
“to use its best endeavours to identify”,
which was given to me by the Communication Trust. I am more than happy, after we have had this discussion in Committee, to consider other words that might be more appropriate, but I do not think that it is good enough to have a Bill of this magnitude, and the opportunity that it presents to do something of real significance, and put at risk the opportunity to put speech, language and communication needs at the very heart of everything that is done with all our young people. That means spelling out in detail what local authorities’ responsibilities must be; it is not good enough to leave it with a phrase such as “with a view to”. I do not think that that is nearly strong enough.
That covers Amendments 76 and 78. I now come back to Amendment 70A, which refers to a very particular condition—attention deficit disorder. It is phrased as it is because, at present, ADHD is picked up only when a child has been excluded for the second time. People have quite rightly mentioned the marvellous report that my noble friend Lady Warnock produced all those years ago in which she listed some of the conditions that were to be examined. ADHD was not on the horizon at that time. I contend that a large number of conditions have developed since then which ought to be looked at and included. I mentioned earlier the definition of neurodisability. We talk about learning disability and learning difficulty, but let me describe what neurodisability means in childhood terms. Childhood neurodisability is,
“occasioned when there is a compromise of the central or peripheral nervous system due to genetic, pre-birth, birth trauma, and/or injury or illness in childhood. Such a disability may therefore affect the brain, spinal cord, cranial or peripheral nerves, or muscles, with common symptoms”,
including learning difficulties, specific learning difficulties, lack of inhibition regarding inappropriate behaviour, difficulties related to speech, language and auditory processing, and cognitive delays. It is said that they incorporate autistic spectrum disorders, acquired traumatic brain injuries, epilepsy, learning difficulties, specific learning difficulties, communication disorders and ADHD.
In other words, there is a great deal to be done, it seems to me, to educate those who are responsible, not just for the initial assessment, but for subsequent child development, so that they can monitor all children as they progress through the 0 to 25 pathway. Conditions such as ADHD, which can actually be treated, ought to be identified much earlier than after the second exclusion from school. My reason for including it is, to repeat what I said earlier to the Minister, that I believe that before any regulations or instructions are issued to local authorities and others as to what is be done in this area, there ought to be urgent consultation with those who have been studying it to make certain that what they have learned and gleaned, and what they are increasingly understanding, is incorporated in whatever comes out. Things have moved on since my noble friend Lady Warnock did her marvellous work, and there is a great deal which ought to be incorporated. I was extremely distressed when this was raised in the other House and was guillotined before it was properly discussed. I do not think that that is something that we ought to do in this House. I beg to move.
My Lords, I shall speak to Amendment 77 in my name and that of my noble friend Lady Hughes of Stretford and to Amendments 82, 83, 84 and 85 in my name. Before doing so, I add my support to Amendment 70A in the name of the noble Lord, Lord Ramsbotham. For me, this amendment represents an important first step in reforming the exclusion policy in schools so far as people with special educational needs are concerned. Some 70% of children excluded from school in England are SEN. That is telling us something: it is a real challenge for us to tackle, and the noble Lord’s amendment at least goes some way to start looking at that. I know from family support workers in south Wales that in some of our cities they are concerned about what they call “soft exclusions”, whereby a child is told, “We don’t want to see you for the next 10 days”, or, “It’s half term next week; we don’t want to see you till we come back after half term”. There is no record kept. This is illegal but it happens, and I fear that young people with learning difficulties are much involved.
In evidence given to the All-Party Group on Autism’s commission on special educational needs, one mother said that she had not been called into school about the behaviour of her autistic son for some considerable time because his teacher was someone who had an autistic child herself and understood the problem. I fear that youngsters with special educational needs are, probably unintentionally, the victims of school exclusion policies, and that is not what we want. I hope that the Minister is minded to welcome this amendment.
I now turn to Amendment 77, which seeks to address the issue of early identification. I know that I am not alone in the Committee in believing that identifying and supporting children with special educational needs as early as possible is the most important factor in improving outcomes. Clause 22 requires local authorities to seek to identify children and young people in their areas who may have special educational needs. Amendment 77 would insert the words “as early as possible”, which most people would believe is common sense—after all, why would we not do that? Why would we not seek this information as early as possible?
The professionals who work with children have a crucial role to play: they are the first educators that the children come into contact with. A number of issues, such as speech and communication problems, developmental delays and behavioural and literacy issues can be better addressed by a good quality early years provider. This means that children start school in a much better position than they would otherwise, and fewer resources are required in later years.
There is evidence, though, to show that the early years workforce is typically the least qualified in the education sector. Reductions in local council budgets have meant that they have cut their training spend for early years staff by 40% in the past three years. This has resulted in many cutting back on early years area SENCOs that they have previously employed to provide advice and training in early years settings. However, the support that they provide is needed now more than ever. A recent Communications Trust project, Talk of the Town, evidenced that across a federation of schools, children and young people’s speech, language and communication needs were under-identified by an average of 40%. The Communications Trust said it,
“remains concerned over how the Bill will ensure that the mechanisms for identification will work in practice across all educational phases and also on local authorities’ ability to identify needs as early as possible, and to respond to these needs”.
The National Deaf Children’s Society, RNIB and Sense are also concerned that overall proposals do not place sufficient emphasis on the importance of early years support for children with sensory impairments and their families.
The Opposition tabled this amendment in the Commons and in response the Minister said:
“One of the things we will consider is whether, and if so how, some of the good practice on the area SENCO role can be reflected in the code of practice”.—[Official Report, Commons, Children and Families Bill, 19/3/13; col. 369.]
I have had a look at the redrafted code of practice, and I cannot see where this is taken forward. Perhaps the Minister, who has considered this in much more detail than I have, can update us on this issue.
I have added my name to Amendment 80, which was tabled by the noble Baronesses, Lady Brinton, Lady Walmsley and Lady Howarth of Breckland, but, in view of the time, I do not propose to speak to it.
Amendments 82, 83, 84 and 85 would ensure that Clause 24 placed a duty on health services to inform the relevant local authority if a child under compulsory school age may have SEN. These amendments would extend this duty to apply to all children or young people who may have special educational needs, regardless of age. It is important that children do not fall through the net and go unidentified early simply because they do not fall within the specific age group set out in the Bill. Having spent 20 years as a councillor, I remember taking up problems on behalf of constituents, often only to be told, “Sorry, councillor, he or she falls through the net”. Who created the net? We did. We, the legislators, the makers of the rules, want to make sure that in this case the net helps and protects people.
In the other place, the Minister referred to single integrated checks and sought to assure Members that the provisions in the Bill would support the identification of children’s SEN and make the these amendments unnecessary. If that remains the Government’s view, will the Minister rehearse for our benefit the argument that the four amendments are not needed and set out clearly where in the Bill the objectives that these amendments are seeking to realise are covered and catered for?
My Lords, I support the amendments tabled by the noble Lord, Lord Ramsbotham. For anyone who knows anything about the system, even in passing, it is brilliantly obvious that we should have had something like Amendment 70A in the Bill. If a child has been excluded twice, it is statistically almost inevitable that there will be a problem, and he or she should be assessed so that the problem can be identified accurately.
We all carry a degree of history with us in this Room. Mine is of dyslexia. The standard way you identify dyslexia is by the difference between spoken and written language. If you cannot speak correctly, the chances of identifying that person as dyslexic go down. We know there is comorbidity. You have to get into the system and look in the round. It is very important.
I have interests to declare. I have used voice recognition technology for years. It requires a degree of use of language verbally to have a way of dealing with that problem. We should thank the noble Lord for bringing to our attention the fact that everything about communication levels starts to come together in the spoken word or the written word. The way these things hang together is always complicated and difficult. It gets more difficult to deal with them the later they are identified.
To say thank you to the Government, I think that Clause 22 is the most radical and brave thing I have seen in a Bill for a while—saying that we will go out and identify those with special educational needs. Most of the special educational needs lobby has been about saying to the educational establishment, “Oi! There’s a problem. Come over here and give us a hand”. I have lost track of the number of times I have had conversations with Members of both Houses of Parliament about dyslexic children and grandchildren: “How do you get the help?”, “Who do you go through?”, “What’s the matter?” and “Do we tell them they have a problem or not?”. Identification here is very important. Making that a stronger duty, despite the fact that it might be difficult, will make the rest of it easier. You cannot help someone if you do not know what the problem is. I very much support this amendment and the sentiment behind it.
My Lords, I record my support for all these amendments and declare an interest as the patron of the British Stammering Association. In particular, I urge the Minister to take on board Amendments 70A and 77. I shall cite three pieces of research. The first is from his own department, almost a year ago. It found that speech, language and communication needs were significantly under-identified among children. The other research is from the organisations that form the Communication Trust. Language development at the age of two is shown not only strongly to predict children’s performance on entry to primary school but to link to outcomes into adulthood. That means employment prospects as well as education. Tied to that is the fact that language development in the early years has a significant impact on the behaviour and emotional development of children. We are talking, of course, of an adverse impact—anti-social behaviour. The final fact is that too many children enter school without their speech, language and communication needs being addressed or even identified. These deficits are already known and it is imperative that the Bill should take more account of them.
My Lords, I will speak to Amendment 80. Clause 22 requires local authorities to identify whether children have special educational needs. This amendment would require local authorities to publish data on children identified as having that need or disability and provide a breakdown of this data by type of need. Accurate data on the number of children in their area are vital for local authorities to plan and deliver services effectively. The draft SEN code of practice, particularly in the section on joint commissioning, outlines the importance of local data sets to identify the needs of children with SEN and inform decision-making. Currently, data from different sources for the same area can vary wildly. Inaccurate data can disproportionately impact on the planning for and delivery of services for children and young people with low-instance conditions such as visual, hearing or multisensory impairments. To give one example, figures on the number of deaf children vary by as much as 30,000.
It is frustrating that a huge amount of energy goes into collecting data for different data sets but none is effective in bringing together a single set that gives reliable figures. Consideration should be given to a simplified, joined-up and less bureaucratic approach, starting within central government. There are three different ways in which data collection could be improved. First, schools and local authorities could be asked to record in the school census whether a child has a disability, as well as formally identified special educational needs. Secondly, a child’s unique health identifier could be used in education and social care as well. This could capture whether a child has a sensory impairment. Thirdly, disability registers could be improved and have greater ongoing oversight. The department needs to review how data on children with sensory impairments more widely are collected to a reliable standard and used to reform the planning and commissioning of SEN services. A welcome commitment from the Government to exploring this further would be of real benefit.
My Lords, my name is attached to this amendment. Clause 32, “Advice and information for parents and young people”, says that we should give advice and information, but how can we give advice and information if we do not know how many people we are going to give it to, what the needs of the children are and what range we will have to plan for in terms of strategy?
Sometimes I mourn the chronically sick and disabled persons legislation, which may be from before the Minister’s time. As a director of social services, I found myself trying to implement that. We were to collect information about the needs of the disabled and sick in our areas in order to create a strategic plan. That was in the 1960s, but here we are now and during all that time we have never got this together.
I know that we do not want to add a huge bureaucratic layer to anyone’s workload. Collecting statistics is always difficult if you are going to get some commonality between the criteria. As the noble Lord, Lord Storey, has pointed out, they vary at the moment across the country. I did a report a few years ago to try to prepare a strategic plan for a voluntary organisation—John Grooms Association for Disabled People—so that it could plan its services. When we tried to get data from across the country, they simply did not exist; hospitals, local authorities and schools all seem to collect them differently.
I hope that the Government will look at this extremely carefully. It is a crucial issue. You cannot have a strategy without data, and data are not that difficult to collect, particularly as the Government are hoping to ensure that all the parents and children in an area will get advice, so they need to know where they are.
Then I shall add them to what I am going to say. I very much support what the noble Lord says about Amendment 70A. It is very important to create a system for identification and picking up kids when you start to see symptoms that might be symptoms of a special need. A lot of the time, there is no sensible way in which a classroom teacher can tell; the difference between ADHD and bad behaviour is not obvious. The motivations behind that behaviour can come from all sorts of things. You need a specialist. You need someone to look, in a one-to-one situation where they are not trying to deal with 30 other children at the same time. You need a decent length of time just to concentrate, and to really know your stuff. It needs to be a proper process of finding out what the problem is.
I have happy memories of going into my child’s school in his second week, by which time he had been given 15 detentions, five of them for having too many detentions. That ought to be saying something to a school, but they need to have the resources available to pick up on what the problem is and settle down and identify it, rather than just having to react to the symptoms. Amendment 70A would put in a backstop—a long way back from where good practice should be, but at least it would be there. That second exclusion really should trigger a proper analysis of what the underlying cause is of the symptoms that the school and the child are suffering from.
I also very much support Amendment 80. There is a lot to be said for having a decent data set for what is going on, not least because it would enable us to spot patterns across the country of differences in diagnosis and in how children were being assessed and treated, which is very important with a process that is essentially local but conditions that are not. The conditions are national, and you want to know what is going on so that you can inquire whether a particular pattern is the result of good or bad practice and either deal with it or spread it, depending on what is right. The base for that has to be data, something at local authority level that can be quite detailed without giving away any personal information and can be a useful and comparable source of information. That should be one of the foundations of our policy.
However, I do not support Amendments 76 and 78. I do not like the idea of the local authority having to scour the country looking under every stone for people with special educational needs. That would be particularly objected to, quite rightly, by the home education community. A lot of those children have been brought out of education because of how badly their special needs have been dealt with by schools, and the last thing that they want is the local authority lording it over them and saying that it has to be in every three months diagnosing their child and telling them what to do. That relationship does not succeed in those cases.
We should not try to create something that intrusive by a local authority. Yes, as was said, the local authority should have its ears open, be a point of contact and have a duty to respond when someone thinks that their child has special needs and wants something done about it. Coupled with the other duties, I think that the Bill will achieve a responsive local authority—a body that will pick up on problems that come to its notice and which has to have its eyes open in ordinary ways, so that it knows what is going on in schools, but which does not have to scour the highways and byways for people with special educational needs. To my mind, that is the right balance.
The noble Lord has completely misunderstood what I was saying about Amendments 76 and 78. I suggest that the best thing is probably for me to talk to him and explain what I was trying to say, because that was certainly not my intention at all; it could not be further from it.
My Lords, Clause 22 extends the current requirement on local authorities to exercise their powers with a view to identifying special needs to all children and young people aged from nought to 25. I am grateful to my noble friend Lord Addington for his support for that. Amendments 76 and 78 from the noble Lord, Lord Ramsbotham, would strengthen the local authority duty to identify SEN. There are many ways in which a local authority will identify children and young people, and each authority will know the most effective way to do so. Paragraph 2.2 of the draft code of practice makes clear that local authorities must carry out all their functions with a view to identifying where children and young people aged nought to 25 have SEN. The duty applies to all of a local authority's functions, not just those under the Bill. Paragraph 5.2 of the code further sets out the requirements for the local offer. It must cover the arrangements for identifying the special educational needs of children and young people across all the providers covered by the offer. That will for the first time bring together information on how SEN is identified across the area and give families and young people a chance to comment on its effectiveness.
On the points raised by the noble Lord, Lord Ramsbotham, about speech, language and communication needs, they are included in the definition of SEN. The code of practice refers specifically to speech, language and communication needs as an SEN, and data are collected annually on that. We recognise that identification may not always be what it should, and our new guidance in chapter 6 of the code of practice gives much stronger guidance on that.
Amendment 70A, moved by the noble Lord, Lord Ramsbotham, would ensure that pupils who receive more than one fixed-term exclusion did not fall through the net. There are already extensive protections in that respect. As a result of his representations and those of other noble Lords during debates on the Education Act 2011, statutory guidance to schools on exclusion reinforces the point that early intervention for poor behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have. It also sets out that head teachers should consider the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour. Chapter 6 of the draft code reflects that approach in providing guidance on identifying different types of SEN. However, schools need the flexibility to identify the most appropriate trigger for such assessments.
While I support the principle underlying this amendment, the steps that we are taking through the Bill and the revised code of practice already reinforce the importance of early intervention. Introducing an automatic trigger for an assessment of pupils’ learning difficulties could have the unintended consequence of creating a box-ticking exercise or lead to schools that are not certain delaying assessments until a second exclusion has occurred.
Concerning the point made by the noble Lord, Lord Touhig, about unlawful exclusion, the department’s statutory exclusion guidance sets out the responsibilities of schools and states explicitly that excluding pupils simply because they have additional needs or sending pupils home to cool off is unlawful. Any evidence of unlawful exclusion is taken seriously by the department and Ofsted.
Amendment 77, tabled by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hughes, emphasises that the identification of SEN should happen as early as possible. Clause 24 reproduces an existing provision that is designed to ensure that action is taken as soon as special educational needs are identified, rather than waiting until the start of compulsory education. For children under school age, health services are often the main point of contact, so it is important that they take action where they identify an issue. The draft code of practice sets out a number of practical steps that will support early identification, including early health assessments such as the hearing screening test, the progress check at the age of two, and an assessment at the end of the early years foundation stage profile at the age of five.
In addition, provisions in this Bill mean that in future anyone will be able to bring a child or young person who they believe has or may have SEN to the attention of a local authority. That includes parents, relatives, professionals, social workers and health visitors. Young people also may refer themselves. That is a significant improvement to the existing position that will help to avoid delays in identifying children and young people with SEN.
Amendment 80, tabled by my noble friends Lady Brinton and Lady Walmsley, raises the important issue of publishing data. We agree that that is important. The department already publishes local authority level data each summer on the number of schoolchildren with SEN and the prevalence of different types of need. Those data are contained in a publication called Special Educational Needs in England. We will continue to publish those data. The department also collects data on children in the early years through the Early Years Census. For post-16, the Educational Funding Agency and the Skills Funding Agency, through the individualised learner record, also collect data on young people in the further education sector on a range of types of need.
Amendments 82 to 85 in the name of the noble Lord, Lord Touhig, together seek to ensure that health bodies take action and notify parents and local authorities where they believe that any child or young person has special educational needs. The Clause 24 duty that I have already mentioned does not extend to children of compulsory school age because they will be enrolled with an educational institution responsible for ensuring that their educational needs are being met. It ensures that health professionals tell the local authority of young children not yet in education who may have SEN. That helps in the planning of support for when they enter education.
The responsibilities of early education settings in schools and post-16 providers for identifying and meeting special educational needs are clearly set out in the draft code of practice. On the point made by the noble Lord, Lord Touhig, about the role of area SENCOs in earlier years, page 70 of the new code of practice states that local authorities,
“should ensure that there is sufficient expertise and experience amongst local early years providers to support children with SEN”.
He goes on to outline the role of area SENCOs in the early years. This is the first time that this role has been included in statutory guidance.
I have set out how the Bill and code of practice together make extensive provision to increase requirements that pupils with SEN are identified as early as possible by whatever services they come into contact with, and that data are published on those identified needs. I hope that noble Lords will therefore not press their amendments.
I am very grateful to all those who have spoken, including the Minister for his summing up. When I was Chief Inspector of Prisons I used to report on what I found, sometimes finding that Ministers had been given what we used to call the virtual prison, which was a description by other people of what they thought the prison ought to be or what they felt it was, which was not in agreement with fact. I must say to the Minister that I heard what he said, but I do not think that it agrees with the briefing that we have been given by practitioners on the ground. We may want a lot of that to happen, but it is not actually happening now. Far from wanting to have a tick-box approach, I would like to make certain that practitioners come together with officials—because the Bill is far too important to be let to go by default—to make absolutely certain that the things that the Minister said are put to the people who are saying that that is not happening. Then we can work out what the actual position is. In that case, I am very willing to withdraw my amendment.
Amendment 70A withdrawn.
Clause 20 agreed.
Committee adjourned at 8.01 pm.